19th December 2020
Of course, law is not magic.
Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.
In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.
If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal with it.
A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either
‘Izzy–wizzy, let’s get busy!
‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’
or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.
This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.
But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.
And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.
For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.
For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.
A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.
But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.
Put simply: laws and sanctions are usually not sufficient to effect behavioural change.
Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.
If a prohibition is not accepted as legitimate – if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.
The prohibition then just breaks down.
And now we come to the lockdown regulations.
The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.
That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.
But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.
A lockdown will only be effective if people actually regulate their social behaviour in reality.
The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.
(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)
Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.
People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.
And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.
There needs to be leadership.
Resources need to be in place for testing, tracing, and treatments.
Fair account needs to be taken of other possible priorities, even if those other priorities are less important.
Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.
In essence, a government needs to govern, and not just make laws.
That is what govern – ments do.
There should be no magic to this.
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