Does more law mean more order?

The streets of our country are in turmoil. … Communists are seeking to destroy our country. Russia is threatening us with her might … Yes, danger from within and without. We need law and order. Without law and order our nation cannot survive … Adolph Hitler 1931

Politicians love “law and order” agendas. The bidding wars by competing parties at state elections concerning who will be more “tough” on crime if elected are well known.

Does more law necessarily translate into more order?

Law can be usefully considered in three categories, structural law which is concerned with constitutions and such like, substantive law which embraces vast areas of regulatory law such as pure food acts, commercial law, property law and so on. The third category may be designated cultural law. Cultural law is primarily concerned with personal morality. It is this category of law which, as a rule, is the subject of “law and order” agendas.

Legislating with respect to morality is notoriously fraught with problems: problems associated with the difficulty of enforcing such law as well as the fact that enforcement may create unintended and undesirable side-effects.

Take as a graphic example prohibition of alcohol in the USA.

In January, 1919 by means of the Eighteenth Amendment to the United States Constitution and the Volstead Act (passed October 28, 1919) the consumption, manufacture, and distribution of alcohol in the USA was prohibited. It is well known that this act led to widespread manufacture of bootleg alcohol, illegal bars, police corruption and not least the nurture of gangs and organised crime. Even the avowed purpose of the act to reduce the consumption of alcohol was short-lived. Statistics show that initially the total consumtpion of alcohol in the USA declined but by the time the legislation was repealed in 1932 consumption of alcohol was greater than it had been in 1919.

To bring about more order by the creation of more law presupposes the following: that by passing an act what is perceived to be undesirable behaviour will be eliminated either by police enforcing the act; or giving police wider powers and/or increasing penalties. Further it is presumed that the existence of an act and its enforcement will serve as a deterrent to others.

Each of these propositions is problematic. As is illustrated by prohibition in the USA, legislating to eradicate behaviour perceived to be undesirable, be it drinking alcohol, illegal gambling, prostitution or ingesting unlawful drugs, does not necessarily result in the elimination of the proscribed behaviour or even reduction in incidence. Further more policing frequently results in more scope for corruption, bribery, extortion and intimidation as well as curtailment of civil liberties.

Deterrence, another word beloved of politicians, is a hugely problematic concept. It is accepted that with respect to regulatory law increased penalties, for example, may act as a deterrent. Take parking offences. The likelihood of infringement decreases as penalties increase. It is quite a different matter, however, when behaviour sought to be deterred fits into the category of personal/cultural law. Thus it is hard to know who didn’t pop an illegal pill at a party because they were deterred by the fact that it is illegal to do so. Just as it is hard to know who was deterred from illegal gambling or prostitution and so on.

If, “law and order” agendas are based on such a shaky foundations why are they so widely used?

Law and order agendas play on fear and in turn create fear. Sociologists such as Frank Furedi write compellingly of the fear that pervades modern politics. Globalisation, rapid technological change and lack of certainty generate insecurity. Since the demise of communism, the “west”, it is argued, has lost its sense of direction and politics is concerned to a greater degree than hitherto with lifestyle and “values”.