Law - What is it Good For? Part 1

Before you ask, I do not think that the answer is 'absolutely nothing'. For many libertarians, the law should have a very limited role to play in society. The argument runs that any regulation of the behaviour of citizens should have widespread support before being introduced. This is a crucial democratic principle and is entirely sound. However, the reasoning then concludes that any law which does have such support will not require enforcement and so need not be introduced. This is where I part company. A curious example is the recent decision by the government to abandon the reform of faith schools, to ensure that 25% of pupils will be drawn from non-members of the religion. It was suggested that the voluntary agreement of the schools was sufficient to bring about the change. There are a number of problems with this approach, the first of which concerns the issue of enforcement itself.

It is a complete myth that laws are only worthwhile if they need to be enforced. A key purpose of the law is certainly to impose penalties to discourage undesirable activities but this is not the only purpose or even necessarily the primary one. Another function is to express the values shared by a particular culture. If we regard the change in the composition of faith schools to be a statement of our commitment to religious diversity, then it will be a beneficial law, even if it makes no material difference to the way in which our education system is run.

Another role for the legal system is to provide guidance to people as to how to live their lives. This may seem patronising but there are, in fact, many ethical ideas inherent in the law that are not widely known or publicised, disability rights being a good example. For employers who strive for best practice (possibly a minority), the requirements set out in statute are surely invaluable. The importance of guiding citizens can sometimes make it useful to have a law which is widely broken, and which it would not actually be desirable to enforce. A nice example is the age of consent. We do not want fourteen-year-olds to be arrested for consensual sexual activity but it is also clear that to lower the age of consent would send completely the wrong message.

Many defenders of the bill to criminalise the incitement of religious hatred pointed out that, like its cousin regarding racial hatred, it is likely that it would have been seldom used. Its opponents, including Polly Toynbee, countered with the argument that there would then be no point in introducing it at all. I strongly disagreed and I continue to do so. Ironically, Toynbee supported the new law on religious schools - she is a secularist rather than a libertarian - but, for me, they raise essentially the same issues. It is increasingly urgent that we define ourselves as a country which does not use religion, or the lack of it, as a barrier to co-operation and understanding. It is equally vital that we send this message to those who would seek to inflame tensions.