Quit while you’re behind…

By skepticlawyer

As I’ve written previously, Christmas is an ancient pagan rite, its relationship to the baby in the feedbox tenuous at best. However, it is a rite, and with rites come repetition (indeed, that is the point). Research bears out the common hunch that the important bits of religion are in its rituals, not theology: this means that in Christian terms the Catholics are in front, in Islamic terms the Shia are in front … while Shinto beats all of them hands down.

In light of that little detail, I should point out that we in Britain are now being treated to an ancillary ritual: the annual Boxing Day hunt brou-ha-ha. I’m not sure whether it’s as psychologically healthful as saying the rosary or writing out mantras in beautiful calligraphy, but its repetitive quality cannot be denied:

Alice Barnard, the Countryside Alliance chief executive, said the organisation remained committed to seeing the ban overturned.

Her comments came after two ministers, Jim Paice and Richard Benyon, criticised the ban as unenforceable and unworkable. Their interventions inspired politicians from across the political spectrum to wade into a debate that has become as much a part of the festive tradition as the meets themselves.

Boxing Day is the biggest day in the hunt calendar. It has become even bigger since hunting with hounds was ‘oulawed’ seven years ago. People on all sides of the issue dance around this factoid, but I (being a lawyer who has worked in the criminal justice system) can tell you why foxhunting is bigger than it ever was: the police, the courts, the authorities do not enforce the hunt ban, much as they do not enforce laws on prostitution or cannabis or pornography with anything but the most perfunctory attention to detail. This is because any attempt to enforce them would represent a colossal waste of police time. The outcry, were PC Plod discovered rounding up local huntsmen as opposed to turning up to deal with burglaries and assaults would be (and has been, on the rare occasion it has happened) a sight to see:

The Hunting Act is a bad law, not least because it is almost impossible to uphold. Last year, 36 individuals were convicted under its provisions; yet only one of those individuals was associated with a registered hunt. Yet, while bad laws should generally be repealed, the House of Commons – as we report today – would be unlikely to do so, even if ministers were inclined to hold a vote. In any case, any legislation to overturn the ban would reignite a fractious debate, at a time when Parliament has serious economic matters to consider.

What we see at work today, therefore, is a classic piece of British pragmatism. The Act is wrong, does not work and should be scrapped. But an uneasy compromise has been achieved that allows many thousands of people to carry on hunting. The time will come when a sensible Parliament will reverse one of the most illiberal and pernicious laws of recent times. Until that day arrives, tally-ho!

Added, of course, to the lack of enforcement is the allure of giving the single digit rampant to the authorities — what Sigmund Freud called ‘pale criminality’ and what Legal Eagle wrote about so well in this presentation for the Adam Smith Club. Pale criminality is the reason why drug use goes down when drugs are legalised, why human trafficking and sexual assault rates drop when prostitution and pornography are legalised, why there is an initial spike when abortion is legalised but the rates later settle at a new, lower level.

Once again from the top, those on both the left and right who would make moral laws: unless you have near unanimity on a given moral precept, you cannot use the law to enforce your moral values. The law will not work, people will continue to engage in the behaviour, and there will be unpleasant spin-offs, like human trafficking, adulterated drugs and organised crime more generally. You will almost certainly make the problem worse: more abortions, more hunts, more drug-use: all the nasties associated with unregulated markets. Hey, there may even be a black market in beagles (and the dog illustrating this post certainly looks like he or she could do with some practice). At trial, you will get perverse verdicts and jury nullification and your criminal justice system will be brought into disrepute.

Moralizers: if you cannot take the people with you, then it really is a case of quit while you’re behind, or be reduced to a laughing-stock.

How often must lawyers repeat the story of Prohibition?

21 Comments

  1. TerjeP
    Posted December 27, 2011 at 6:57 am | Permalink

    We should ban prohibition. 😉

  2. Tim
    Posted December 27, 2011 at 7:01 am | Permalink

    [Tried to post this comment before. Didn’t see it show-up so trying again.]

    Do laws against child porn increase the creation and availability of child porn? Do laws against adults having sex with children increase child sex trafficking? I doubt it. And, is there something here other than an empirical question?

    Also, why must the pejorative “moralizing” be used to describe persons who want to outlaw something they believe to be harmful and therefore immoral?

    I do not believe hunting is immoral (trapping, I’m not so sure). But if someone else does believe that hunting is immoral, I have no problem with such person trying to get it outlawed.

  3. TerjeP
    Posted December 27, 2011 at 7:03 am | Permalink

    Seriously though it is not just prohibition that is counter productive but lots of regulation. I’ve been spending a fair bit of time discussing innovative nuclear technology online, technology that produces vastly less waste and is vastly safer than the already pretty safe nuclear technology in use today and whenever you get into the weeds discussing why nobody is building these improved designs it comes down to the regulatory obstacles erected in the name of safety which stifle innovative endeavours. Although in Australia’s case we just have old fashion prohibition.

  4. Tim
    Posted December 27, 2011 at 7:06 am | Permalink

    Been trying to post this but it isn’t working….

    Do laws against child porn increase the creation and availability of child porn? Do laws against adults having sex with children increase child sex trafficking? I doubt it. And, is there something here other than an empirical question?

    Why must the pejorative term “moralizing” be used to describe persons who want to outlaw something they believe to be harmful and therefore immoral?

    I do not believe hunting is immoral (trapping, I’m not so sure). But if someone else does believe that hunting is immoral, I have no problem with such person trying to get it outlawed.

    Religious and moral beliefs were instrumental in achieving abolition of the slave trade, later abolition of slavery, and even later abolition of legal racial segregation in the United States. Perhaps we should welcome the efforts of those who engage in moralizing.

  5. Darryl rosin
    Posted December 27, 2011 at 7:14 am | Permalink

    The Eastern Church(es) beat the Catholics hands down for ritual.

    d

  6. Posted December 27, 2011 at 7:27 am | Permalink

    Actually, I’ve heard that Darryl, and one of my mates actually went to the Armenian (?) service in (I think) Jerusalem, which he said was awesome… but then he accidentally stood in the way of a group of nuns and, since he’s tall, he blocked their view and they started hitting him!

    [Response to Tim brought across from facebook]: Religious and moral beliefs were also instrumental in keeping those things legal, Tim – you know that as well as I do. Just because moralizers are sometimes on the right side of an argument does not excuse them when they’re on the wrong side of an argument.

    And as for the laws against child porn or child sex trafficking, the more damning conclusion (at least that I’ve seen in Europe) is that they achieve nothing, either good or bad. Where prostitution is legalised, regulated and taxed, all trafficking rates drop, both adult and child. That isn’t to say we should not try to stop child sex trafficking, but it is to acknowledge that perhaps the law is not a very good way to go about it.

    Of course, it may be that there are no good ways to stop it, but that is a separate issue. Law has limits. One can argue about principled limits until the cows come home, but I think it’s important to acknowledge the means-end limits before we get anywhere so high falutin’ as morality or principles.

  7. Posted December 27, 2011 at 9:39 am | Permalink

    I would expect legalisation of prostitution, porn and drug taking to lower the incidence of child prostitution, child porn and selling to minors since, if both are illegal, there is little or no greater penalty in doing it with minors but, if it is legal with adults but not with minors, there is a major disincentive to do it with minors.

  8. Posted December 27, 2011 at 9:59 am | Permalink

    The Chief Judge of NSW District Court seems to think that people smugglers can be judged before the trial and it is an inconvenient form of prohibition. It is a black market, but not necessarily one that authorities are powerless to affect. As Robert Manne has noted:

    Between 1999 and late 2001, 12,176 asylum seekers arrived by boat. In the years of the Pacific Solution – 2002 to 2008 – 449 arrived. Since its abandonment, 14,008 asylum seekers have reached Australian shores.

    But that is more about the incentive to purchase the voyage rather than the incentive to provide it.

  9. TerjeP
    Posted December 27, 2011 at 11:27 am | Permalink

    Lorenzo – I think we should address the supply side of the asylum business by providing a superior product to what the smugglers are offering. If you have your ID papers in order, if you have no noxious criminal history and if you pay a fee of $25000 then the Australian government should simply hand you permanent residency in Australia. You can then fly here safely for a couple of hundred dollars. And rather than diluting our stake in public infrastructure the new arrivals make an immediate net contribution.

  10. derrida derider
    Posted December 27, 2011 at 1:22 pm | Permalink

    I dunno whether the ban on hunting is a Good Thing or a Bad Thing (“the unspeakable in pursuit of the inedible” and all that) I do know that having a law on the books which is openly ignored is always a Bad Thing. Either repeal it or enforce it.

    Given the ritual and hoopla surrounding it, I don’t think it would be at all hard to enforce if the will was there. Who needs coppers? Park rangers, game and fishery wardens or RSPCA inspectors issuing on-the-spot fines is all that is needed.

    But if it was a working class cruel pleasure (like say, using live rabbits for greyhound race training) then I bet it WOULD be enforced. Class still matters in Britain.

  11. Davo
    Posted December 27, 2011 at 3:42 pm | Permalink

    read “Sarum” – James Rutherfurd. links into “british” isles lore -law. As distinct from “Roman” -law -lore. can’t explain this very well.

  12. Movius
    Posted December 27, 2011 at 6:37 pm | Permalink

    It may not have worked for all those other things but it will work for gambling!

  13. Davo
    Posted December 27, 2011 at 7:54 pm | Permalink

    For whatever it is worth – i wish you, and yours; all the best, for this, and forever seasons.

  14. Posted December 27, 2011 at 8:00 pm | Permalink

    To be fair, DD, they banned lure coursing (a working-class pursuit) as part of the Hunting Act; this ban is also widely ignored. The problem for the anti-hunt crowd is not just one of enforcement, but of failure to take the people with them. Laws with a basis in morality really do require near unanimity, and even then may fail (there is a reason why infanticide is not treated as murder in any developed jurisdiction – getting juries to convict is a nightmare).

  15. Posted December 28, 2011 at 10:39 am | Permalink

    To further my point @7: at the very least, it would raise the price, which generally has a downward effect on demand.

  16. Tim
    Posted December 29, 2011 at 11:02 am | Permalink

    As far as I can tell, my questions remain unanswered.

  17. kvd
    Posted December 29, 2011 at 11:24 am | Permalink

    [email protected] my answers were ‘yes’,’yes’, ‘don’t understand your question’ and ‘dunno, but your question is itself a form of moralising’. But I’m usually in the minority.

  18. kvd
    Posted December 29, 2011 at 11:36 am | Permalink

    What’s happened to the ‘tools’ i.e. links, and italics, etc.?

    Longhanded:

    Looking at SL’s @6 made me smile when reading

    http://www.smh.com.au/world/strangebuttrue/rival-clergymen-in-bethlehem-church-brawl-20111229-1pdca.html

  19. Posted December 29, 2011 at 11:39 am | Permalink

    kvd, good question. We have just had an upgrade, so it’s quite likely that WordPress has eaten them. This happens reasonably regularly, alas.

  20. John H.
    Posted December 29, 2011 at 5:53 pm | Permalink

    But if it was a working class cruel pleasure (like say, using live rabbits for greyhound race training) then I bet it WOULD be enforced. Class still matters in Britain.

    They could always kill two birds with stone and allow hunting of the disabled. The disabled could offer to be prey, if they survive they must be forever supported by those involved in the hunt, including a house and car and all medical bills. If they are killed, their problem is solved and society saves money. No co-ercion, a good solid market based solution.

  21. BCS
    Posted January 3, 2012 at 5:55 pm | Permalink

    I think i understand: allow any sort of barbaric and hurtful behaviour if it is too expensive to prohibit. AND, a bad law is one that is difficult to enforce, irrespective of its purpose.

    A lot of people would tell you that enforcement of speeding law is bad policy – in fact, they don’t enforce it in Canberra, where i live. Does that mean anything goes on the roads? Because my actions reflect the sort of society i wish to live in – and i don’t want to pay a fine – I don’t speed, i stop at red lights and stop signs, i don’t cross unbroken lane marking lines, and so on. And it is for this reason that every day i have to endure being tailgated, cut off and abused by people who believe that to flout the law is to elevate oneself (pale criminality). Because there are no consequences, people are less inhibited against behaving badly towards one another; habit has made it a conditioned reflex.
    This, too, is the reason that the other night I yet again had to stop to attend to a kangaroo with two broken legs that had been hit by a stupid girl who was speeding and not paying attention to the road. And on the way home from that i had to endure the fool driving two-car-lengths behind me at 80kph, because they were just too stupid to understand what would have happened if a kangaroo had jumped out in front of my car.
    That covers the stupidity aspect, but then there is the evil aspect – and most people are either evil or stupid, or both. On that score there are the butch males driving their butchmobiles who get a kick out of the primitive felling of social power they experience when they behave offensively towards others. Like the yob in the butchmobile who charged out from a sidestreet hoping to make me react to him. I saw the look of malicious pleasure in his eyes as he fed on the power he gained from having caused a disadvantage to me. he believed that to ‘take’ from me was to socially elevate himself. And THAT describes the nature of the species. Like all animal societies ours needs a ‘dominant male’ to reign in the socially destructive behaviour of its members. We no longer have a dominant male, and that allows people to be their worst. It allows people to feed on their primitive urge for tribal supremacy by hurting others – to cause harm to others is to elevate oneself.

    By the way, have you considered the inconsistency in your views. On the one hand you say that a bad law is one that is too difficult to enforce and yet on the other hand – see your article on the costumed vigilante in the US – you say that people taking the law into their own hands (tribalism and anarchy) is a consequence of a loss of confidence in law enforcement. You can’t have it both ways.

    BTW, just to see how your readers react, I will mention that the old ‘unworkable’ line has been used to justify the abolition of anti-social-behaviour orders – in fact it was just to save money. As soon as you say ASBOS, the people who want a lawless society wheel out the examples of people getting ASBOS against neighbours wearing underwear outside, and so on. But what about all the tens or hundreds of thousands of people who have to live with the daily hell of someone deliberately trying to cause them harm by behaving in ways intended to offend or terrorise? Where do they turn for protection in society? Oh, the law is unworkable, isn’t it!

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