Law & criminology: LA15710 Foundations of Law
Kerry Lewis kll@aber.ac.uk
1. Law is Boring. Obviously. Let’s talk about smoking, drugs, maybe cars and food…
Extra Reading:
Lawrence Lessig, Code: Version 2.0 (Basic Books, 2006) Chapter 7
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You are the king (or queen, as the case may be) of the castle. Your kingdom is large and varied and you are a kind and wise ruler. You have always made it your ambition to make sure that all your subjects live a long and happy life. Your Statistician-in-Chief has carried out a very comprehensive 5-year survey and tells you that 94% of all pre-mature deaths and severe health problems in your kingdom are due to excessive smoking and drug taking, car speeding and obesity. You feel you ought to do something about that…
1. What are the different avenues for regulating conduct i.e. what are/may be constraints on behaviour?
Four constraints:
· Direct law (sanction: punishment)
· Market/financial considerations
· Social norms
· Code/architecture
Two Types of Regulation
Example
Reduce number of books going missing from libraries
Reduce number of children drowning in swimming pools
direct regulation
You must not steal library books
state sanctions
institution sanctions e.g. penalties for late return or no return (cannot graduate)
Make it an offence to not properly supervise children in potentially dangerous situations
indirect regulation
Market Forces
Giving students a free or cheap book or photocopy allowance
Increase cost of swimming pools
(Option? WHY NOT? Cos swimming itself a desirable activity – Also unlikely to be approved by electorate)
Social/Moral Norms
Stress the unfairness of hiding books from other students
Education campaign about the dangers of unsupervised children in swimming pool
Architecture/ Code
Tag books - Barriers in the library
Code implemented by private actor – self-help)
Legal requirement to have a fence around swimming pools
2. What factors may determine how you decide upon one or more of these avenues?
(a) Relative plasticity of the factor in relation to the behaviour: how changeable it is? May be more or less plastic/changeable
Market
· Influence it through taxes and subsidies
· E.g. smoking, alcohol, child care
· influence it through education – indoctrinate children into certain norms of behaviour
· may also be influenced through transparency requirements, e.g. company directors must disclose company’s policy re equal opportunities or environment
Code
· automatic seatbelts - locate constitutional court in another city than the parliament to stop politicians influencing the judiciary - speed bumps - street lighting to reduce crime (also CCTV)
· Sometimes given by nature and sometimes man-made – when man-made not value neutral, e.g. ramps or the absence of ramps for disabled people – may be initiated by government or government may leave it to private individuals to implement code (e.g. lock doors, window locks, burglar alarm)
(b) Cost and ease of enforcement versus effectiveness: cost-benefit analysis
‘The question is: Which means best advances the regulator’s goal, subject to the constraints (normative or material) that the regulator must recognize?’ Lessig, p.129
(c) Proportionality in light of other goods/values
‘Fiscal efficiency may also align with the expressive content of law – a punishment so extreme would be barbaric for a crime so slight... The regulator has a range of means to effect the desired constraint, but the values that these means entail need not align with their efficiency. The efficient answer may well be unjust – that is, it may conflict with values inherent in the norms, or law… of the society.’ Lessig, p.126
‘When its operation is direct, it tells individuals how to behave and threatens punishment if they deviate from that behavior. When its operation is indirect, it modifies one of the other structures of constraint. The regulator selects from among these various techniques according to the return from each – both in efficiency and in the values that each might express.’ Lessig, p.132
3. What is good and bad about Code/architecture?
Good
Bad
Nearly 100% effective
No (or very little) enforcement action needed eg. cost of fencing and locks cheaper than police patrolling property or imprisoning offenders
Close to 100% effective. Could be overeffective: sometimes the law positively relies on inability to enforce law 100%, e.g. in allowing exceptions to a rule. Consider: copyright law and the fair use exception e.g. copying a certain amount of a work for academic purposes is acceptable - therefore there is a duty on copyright owner to make the property accessible.
Restricts choice and personal autonomy
Constraints that stop you from being bad, also stop you from being good. Moral agency unnecessary. Does not rely upon individual’s decision to comply with it or not - which requires prior knowledge
Lack of transparency (the problem of indirection): subject of law may not be aware of it
’Indirection misdirects responsibility. When a government uses other structures of constraint to effect a constraint it could impose directly, it muddies the responsibility for that constraint and so undermines political accountability. If transparency is a value in constitutional government, indirection is its enemy.’ Lessig
‘[T]he government gets an effect at no political cost. It gets the benefit of what would be an illegal and controversial regulation, that is, without even having to admit any regulation exists.’
LAW
Definitions
· A law is an obligatory rule of conduct. The commands of him or them that have coercive power. (Hobbes)
· A law is a rule of conduct imposed and enforced by the sovereign. (Austin)
· Law is a system of rules that guides and directs our activities in much of day to day life. (Holland &Webb)
Purposes
· To maintain order and punish wrongdoing
· To provide an outlet for the peaceful resolution of disputes
· To facilitate and regulate private arrangements
· To establish a stable society i.e. social purposes
· To settle what the system of government is to be
· To re-distribute wealth
Interests
1) Individual Interests
Individual personality
Domestic relationships
2) Financial Interests
Contracts, Bargains and Promises
Security and Continuity of Employment
Property
3) Community Interests
Peace and Security
Public morals
Social resources and amenities
4) Interests of States
States and Individuals
...
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