49. "It's quite right to make racist or homophobic remarks illegal."
It's certainly not acceptable to make racist or homophobic remarks, or to let people get away with making them in your company. The question is whether it should be against the law, with police involvement, fines and possible prison sentences, or whether we should rely on social pressures. Times have changed, and attitudes with them. An older generation callously and carelessly felt free to abuse and stigmatize others for their racial background or sexual orientation. Now there's more sensitivity to the hurt this can cause, as well as more tolerance. This is particularly true among most younger people.
Despite these welcome changes in attitude, parliamentarians still feel the need to criminalize such remarks. They use the pretext of "incitement," and call even ill-mannered abuse or poor taste humour a hate crime if it mentions some minority. Thus someone was questioned by police after saying humorously on radio that they disliked Welsh people. A shop was visited by police for displaying antique gollywog dolls in its window. Often the person complaining is not of the minority allegedly being derided or mocked, but someone else who thinks that they might be offended.
The point here is that most of us don't want to live in a society where abuse of people in some way different is regarded as acceptable, but nor do we want to live in a society which allows self-appointed thought police to seize on thoughtless but harmless remarks and have criminal proceedings taken against those who utter them. Not everything which is social unacceptable has to be illegal.
Tolerance is best where it is felt, rather than where it is enforced. It works best when people are easy-going about each other's differences and backgrounds, and more concerned with what they are like as individuals than about which groups they can be pigeon-holed into.
46. "Getting everyone's DNA on file would allow us to track down criminals and protect society."
If we wanted simply to track down criminals and protect society in the most efficient way, we would watch everyone all the time, listen in on their every conversation, constantly record all their movements, and know everything about them it was possible to know. Criminal activity would be difficult, given this approach, but no doubt clever criminals would find news ways of concealing their activities.
Even though it would undoubtedly be efficient, we don't allow it because we don't want to live in that kind of society. We want a private domain in which we have space that is only for ourselves and those we choose to share it with. The state has no business in that domain.
We treat people as innocent until proven guilty. We do not start with the assumption that all people are criminals, if only we had enough information on which to convict them. Only those who transgress the law, or who give grounds for reasonable suspicion, forfeit the right to that private space and prompt the state to enter it to protect the rest of us.
Our DNA is private information. It not only tells uniquely who we are, it can be used to tell where we have been, and in some cases what we have been doing. The state has no right to such information without good grounds for suspicion. It is more information than it can be trusted with. DNA tells even more than that, however, it tells of our genetic traits, something of our abilities and potential, and the conditions and diseases to which we might be prone. There is no way we want this information in the hands of a body we put in place to serve our interests. It would give it more power than any authority can be trusted with.
Eamonn Butler, the ASI's director, has an article on The Free Society's excellent new website, in which he looks at the worrying amount of surveillance we are all subject to these days:
From time to time there are small victories – a judge recently grumbled about street cameras with microphones that enable police and local authority staff to eavesdrop on what it being said on the pavement underneath. But the trend is all to more and more surveillance. Yes, CCTV cameras have no doubt deterred crime in some places and they have certainly solved crime in others. But do they make me feel safe? Not on your nellie.
Well, quite. As Eamonn continues:
[I]t’s not as if all this surveillance is being used to protect us against hardened terrorists anyway.
No, it's fly-tippers and speeding motorists that Big Brother is really on the lookout for.
Throw in all our personal, medical, financial, and (soon) biometric details that the state has access to, add in the fact that the police has the DNA and fingerprints of hundreds of thousands of people who have never even been charged with a criminal offence, and then consider that the movements of our mobile phones are tracked and stored in case the police subsequently want to check our movements. It's clearly a scary future we are heading towards. Needless to say:
[W]e will probably find the state authorities sharing this information with lots of other people. Not deliberately, of course. I’m thinking of the hackers and mafia bosses who will find them to be a very convenient way of cloning someone’s identity. Why should the state have a monopoly on the abuse of personal information?
The whole article is well worth a read. While you're there, have a look around The Free Society's website. They're adding more interesting stuff every day.
38. "It's all very well to talk of freedom, but poor people are not free to buy Rolls Royces."
Actually, the poor are free to buy Rolls-Royces. They are not rich enough to buy them, but they are not prevented from doing so by the whim or will of others. If they had or could get money they could buy luxury goods, but there are some things people are not free to do, be they rich or poor.
They cannot smoke with impunity in a public bar, or demonstrate within the vicinity of Parliament. Being banned from doing something is about curbs on freedom. Being able to afford something is about power over circumstance.
A person who lacks the resources to buy something might hope to raise the money by saving, working, borrowing, or winning it. Most of us buy things we couldn't at one time afford. It wasn't that we were thwarted by the will of those in a position to stop us, only that we lacked the necessary means.
There is a crucial difference between being held back by circumstance and being restrained by the superior power of others. In the first case you have aspirations beyond your present abilities, but in the second case you are subject to the arbitrary dictates of an authority which makes you live as it sees fit, rather than as you want to do.
A free society allows people to make their own decisions, rather than have them subject to the whims of those in power. There are things they cannot do, not because they are unfree, but because they are unable. People are free to jump unaided over the Eiffel Tower, but are not able to do so. The difference is that people can overcome a lack of means more readily than gravity. In a free society they can hope to prosper, and to do the things hitherto beyond them. In an unfree society they cannot.
33. "It's right that acquitted people should be re-tried when new evidence comes up."
It never used to be, and in enabling it, government has abandoned an important principle in law. The principle, known as 'double jeopardy,' is that a person should not be tried twice for the same offence. Once acquitted, they should be clear. The reason is to prevent the law playing cat and mouse with an accused, trying and re-trying them in the hope of a conviction, maybe with a different jury. If the prosecution has only one go at it, they must take care to prepare their case properly, and only take an accused to trial if there is a strong and convincing case.
If they can come back subsequently for another go, there is not the incentive for the prosecution to prepare their case assiduously, or to demand an overwhelming body of evidence before they proceed. They might be encouraged to try on the off-chance, knowing they can always come back and try later if they fail.
The principle of double jeopardy has already been weakened in the US by allowing federal courts to retry someone already acquitted in a state court on the same evidence. It has been weakened by allowing civil actions to follow a criminal acquittal, which should itself be a complete defence against subsequent actions. To allow retrial of those acquitted in criminal actions dangerously undermines our protection from oppressive authority.
People's sense of justice is outraged if new evidence emerges against an accused who has been acquitted, particularly if for a shocking crime. But the principles of law should override the merits of individual cases. We must accept that some guilty individuals will go free in order to maintain the principles which protect and preserve a free society. People's fate must not be at the whim of the authorities, but protected by the rule of law.
Alcohol didn't cause the high crime rates of the '20s and '30s, Prohibition did. And drugs do not cause today's alarming crime rates, but drug prohibition does.
– US District Judge James C. Paine, addressing the Federal Bar Association in Miami, November, 1991
23. "Many things just cannot be produced by the market system, including such services as defence and law and order."
This may be true, but is not an argument against having the free market produce what it can. Society might decide to guarantee the collective provision of some services, such as defence and the administration of justice. This has little bearing on whether its rail transport or its health should be produced in the public sector.
In any case, market forces can play a surprisingly large role in even the "core" public services. Over half of Britain's police, for example, are private. They work for private security firms which perform police functions. Much military work is contracted to private enterprise, including maintenance of military bases, and the supply and servicing of equipment.
Private justice is used routinely in Alternative Dispute Resolution (ADR), when firms specify in contracts that an agreed arbitrator is to be used in the event of dispute. Privately run prisons are widely used in the USA, and have been successfully introduced in Britain, too. Even the role of central clearing bank, assumed by many to be a core state function, was at one time ably performed by the private Suffolk Bank.
A generation ago in Britain people thought that only the state could deliver mail, connect telephone calls, or collect the garbage, among the dozens of activities it ran. Private businesses do them now.
There is scope for greater use of free market forces in many areas of social provision. The state may wish to guarantee the supply, but it usually finds it more efficient to use private business to actually produce it. Competing private businesses have to attend to consumer preferences and keep up with innovations in both equipment and service. They are not subject to produce capture as state operations are. It makes sense to introduce market forces wherever possible, even in the state's core functions.
Travelling to America has, in recent times, become arduous. Increased security due to the threat of terrorism now means the weary traveller is faced with long lines, impersonal questioning, scanning of index fingers and a snapshot of your face. The duty to protect is a core part of national government, but it always seems that the 99 percent of us that travel to the States with lawful and legal intentions are being treated as though we are all criminals. This has turned many away from travelling to the United States, and things don't look set to improve.
We will now be faced with a new challenge: a 10 finger scanner that the Department of Homeland Security is aiming to have at all points of entry in the US by the end of 2008. These scanners are linked directly to the FBI’s criminal database and automatically scan to see if you are wanted or are on any of their lists, be it terrorist or otherwise. (There have already been wrongful arrests relating to this; I expect there to be more over the coming months). We can marvel at the innovation, but surely we must also ask if it is really needed and should so many innocent travellers have to endure it?
Yes, the state must protect its citizens. But the state is also increasingly showing that they have no processes in place that do not tarnish us all with some degree of guilt. The rise in usage of scanners and ID cards is really a government admission that they do not really know how to protect us. It is time for us to ask for protection from someone with better ideas, and an approach that does not invade our privacy, but only invades the lives of those that wish us harm.
18. "Positive discrimination is needed to make good to minorities the effects of past exploitation or discrimination."
This is the crux of the case for 'affirmative action.' But to discriminate in favour of some groups has to involve unfairly discriminating against others. Although it is called "positive discrimination," it still means giving positions and jobs to those less qualified than other applicants. Since no one alleges that the other applicants have personally committed discrimination, they are being treated unfairly. This practice pigeon-holes people into ethnic and minority boxes, rather than treating them on their individual merits.
Given open access in university applications, some groups seem to gain more places than their proportion of society would suggest; maybe their culture values education and study more than others do. To allow others entry on lower qualifications discriminates against them. If people are to be discriminated against because of something done by a group their ancestors might have belonged to, there are no limits, nor any indication as to how far back this should go. To the Romans, perhaps?
What is needed is not positive discrimination, with its unsavoury flavour of racial classification and quotas, but open opportunity for people of all groups. Instead of giving preferred places to those whose race, sex, sexual or religious preference have been discriminated against in the past, we should be making sure that we extend to all the choices and the opportunities which were more restricted in previous times. We should be creating an open society, not one where advancement depends on membership of whatever minority groups are sufficiently powerful or fashionable to command preference.
Positive discrimination perpetuates racism and dignifies it with legal claims, whereas the open society overwhelms it by being blind to a person's background. It should matter more where a person is going, rather than where they came from. It should be individual merit, not ethnic quota, which determines advancement.
17. "We should allow the police to hold suspected terrorists for a long period while the evidence is assembled."
When the law holds people in custody it has them as prisoners. Since they have not been before a court and convicted of a crime, we must be careful that this custody does not constitute a sentence without trial. If the authorities can hold people indefinitely to question them and gather evidence, they will not need a trial to sustain what is, in effect, a prison sentence. This is why the law forbids them to do so for long periods. They are required to produce the accused in person before a court of law. It is called habeas corpus and is one of the cornerstones of our liberties. The law cannot hold us incommunicado; it must produce us in the body.
The period is short, typically 48 hours, and can be briefly extended only by asking the permission of a magistrate. This cannot be repeated indefinitely; at some point the accused must either be released or charged and go to trial.
Government has attempted to extend this period of confinement to many weeks in cases of suspected terrorist crimes, but produced no good reasons to support its case. Neither Parliament nor people were told why so long a period was deemed useful or necessary.
The problem is that when police are given powers, they have used them for cases they were never intended to cover. US laws designed to stop mafia-style racketeering have been routinely used on business transgressions. A UK anti-terrorist law enabled police to detain an 80 year-old who dared heckle a government minister, and a Scottish pedestrian who walked along what was marked as a cycle track.
The law which prevents long confinement without trial is important for our liberties. Nothing has emerged to suggest that it should be over-ridden when the police wish it to be.
If we wanted simply to track down criminals and protect society in the most efficient way, we would watch everyone all the time, listen in on their every conversation, constantly record all their movements, and know everything about them it was possible to know. Criminal activity would be difficult, given this approach, but no doubt clever criminals would find news ways of concealing their activities.
It never used to be, and in enabling it, government has abandoned an important principle in law. The principle, known as 'double jeopardy,' is that a person should not be tried twice for the same offence. Once acquitted, they should be clear. The reason is to prevent the law playing cat and mouse with an accused, trying and re-trying them in the hope of a conviction, maybe with a different jury. If the prosecution has only one go at it, they must take care to prepare their case properly, and only take an accused to trial if there is a strong and convincing case.
Travelling to America has, in recent times, become arduous. Increased security due to the threat of terrorism now means the weary traveller is faced with long lines, impersonal questioning, scanning of index fingers and a snapshot of your face. The duty to protect is a core part of national government, but it always seems that the 99 percent of us that travel to the States with lawful and legal intentions are being treated as though we are all criminals. This has turned many away from travelling to the United States, and things don't look set to improve.
This is the crux of the case for 'affirmative action.' But to discriminate in favour of some groups has to involve unfairly discriminating against others. Although it is called "positive discrimination," it still means giving positions and jobs to those less qualified than other applicants. Since no one alleges that the other applicants have personally committed discrimination, they are being treated unfairly. This practice pigeon-holes people into ethnic and minority boxes, rather than treating them on their individual merits.
When the law holds people in custody it has them as prisoners. Since they have not been before a court and convicted of a crime, we must be careful that this custody does not constitute a sentence without trial. If the authorities can hold people indefinitely to question them and gather evidence, they will not need a trial to sustain what is, in effect, a prison sentence. This is why the law forbids them to do so for long periods. They are required to produce the accused in person before a court of law. It is called habeas corpus and is one of the cornerstones of our liberties. The law cannot hold us incommunicado; it must produce us in the body.