What Really Motivates Our Lawfulness Isn't The Law

In my last Blog post I pointed out a Home Office error of reasoning about prison deterrence. I wanted to say something else about deterrence, but felt it would be better in a separate Blog post. Despite what I said about prison being mainly a deterrent against first time offences, it's also the case that the law is not the strong motivational, incentivising device many think it is - human rationality is the real motivational, incentivising device that enables us to have the relatively peaceable co-existence we have in places like the UK.

Imagine a man in the ancient Assyrian empire living in 1200 BC - a time of sieges, cross-border invasions, sanguinary conflicts and relative lawlessness. Suppose he gets transported to modern day Britain. As well as marvelling at the technological advances, the thing that will strike him most would probably be how peaceful, tolerant and stable it is.

Anyone who has studied history knows that peace and good order are far from the natural condition of human beings. The freedom, liberty, stability and security we have in the UK would probably strike our Assyrian man as being as marvellous as all the modern day technology (of course, if you transported him to present day Syria, or Ukraine, or Burma - or London during the 2011 riots - he'd soon feel more at home).

How have we become so ordered? Clearly not just by authority. If the majority of UK citizens decided to seize control over the authorities, they would have more than enough numbers to do so. Suppose you were asked to form an allegiance with an ever-expanding majority group who wanted to take control of the UK, and had the power to do so. Under this power you could join them in running riot - stealing from banks and shops, raping whomever you fancied, commandeering rich people's houses, swim in their pools, drive their Aston Martins around, and generally take advantage of being able to do what you wanted. I think you know straight away that you'd be prohibitively reluctant to join - in fact, you'd probably be on your knees praying that they don't go through with it.

The reason is obvious - despite some possible temporary gains, the losses are greater, as no one wants to live in such a society. Clearly, then, we are ordered not primarily out of fear of the law, but because we want to be ordered and want to live in a stable and safe society. Some moral philosophers will tell you that we are ordered because we all share the same views about what is right and wrong.  One careful look at society shows that this is moonshine - we differ greatly on all kinds of moral views. Therefore I would suggest that the moral philosophers who postulate this view have got their reasoning backwards - it is precisely because we have little chance of agreeing if all left to our own devices that we leave it to the devices of an elected government instead, and volunteer our active part in ensuring that those State-run devices are used as little as possible.

In all likelihood, until the past few decades a great many people had been brought up on a diet of people like Thomas Hobbes' and his portents in the Leviathan, according to which the benefit of the State is that it helps engender the kind of order of which we'd be devoid without a heavy authority in place. Without it life would be "nasty, brutish and short" according to Hobbes - which, as we know from history and from present day places without a stable State and rule of law, can be the case.

What Hobbes underestimated is the extent to which people have an incentive to adhere to the law if it is consistently enforced and that the State has an easier time policing a nation whose citizens adhere to the law, as well as an incentive to create laws that best incentivise. Hobbes got this part wrong - he believed that our natural brutishness necessitated a strict authoritarian State that could keep us in good order. He failed to appreciate the true strength of the symbiosis between willing citizens and willing State to work together to constrain us only to the extent to which our willingness to be co-operative was realised.

* Photo courtesy of hurstpublishers.com

The Prison Deterrence Fallacy

Now it's fairly obvious that there are a number of factors behind this difference between Sweden and the USA; things like number of laws, population size, levels of diversity, and varying levels of cultural tolerance on things like social behaviour, drugs, and so forth. On the last one, which is a big determiner of crime, apparently - "The drug policy of Sweden is based on zero tolerance focusing on prevention, treatment, and control, aiming to reduce both the supply of and demand for illegal drugs".

 

I won't comment any further on the prison situation in Sweden or the USA, because I'm not extensively researched on either. But I do have something to say on UK prisons, as there seems to be a fundamental error of understanding that I can hardly believe is uttered by our Home Office representatives. Here's what led me to witness this strange piece of logical foolishness.

 

Apparently, the story goes like this: after Vicky Pryce emerged from her period of incarceration and publicly claimed that prison is 'not fit for purpose', our Home Office team have been working hard to address the reasons why. Guess what their conclusion was? They concluded that it is primarily due to the high re-offending rate that prison is not fit for purpose as a deterrent against crime.

They base this on the fact that, according to Home Office statistics, 3/4 of criminals are recidivists. What that means is that 75 out of every 100 criminals released from prison re-offend. Actually, that's how many are convicted - and given that not all crimes result in a conviction, it's a fairly safe bet that more than 3/4 of criminals end up reoffending.

 

But saying that prison isn't fit for purpose because of high re-offending rates is an absurd complaint, and a peculiar error of reasoning. It's a bit like complaining that sea defences aren't fit for purpose because occasionally there are extreme coastal conditions that break those barriers. It would be good if the sea defences prevented all flooding, but their primary job is to protect the land from the ordinary thrust of the sea on a daily basis. Similarly, prison's primary function is to reduce offending (by deterrence and by keeping criminals out of society), not re-offending. If it reduces re-offending then all well and good, but that is not its primary function.

It's preposterous to consider whether prison is fit for purpose by only considering the recidivism rates. It's as preposterous as considering how many men in the UK take steroids by only interviewing weight-trainers in gymnasiums. Such a biased research method would drastically skew the overall figures, and this is what is going on with the Home Office's consideration of prison's success rate. Recidivists are people who've already been convicted of a crime, so they are people for whom the threat of prison was no real deterrent first time out. Therefore they are the biased sample of the population for whom prison is the least likely to be a deterrent second time around.

The only proper way to enquire whether prison is fit for purpose is to ask how much of a deterrent it is for the vast majority of people in the UK - those who haven't found themselves outside of the orbit of the law. As far as we can gather, the threat of prison, loss of liberty, loss of employment, and so forth has been a very successful deterrent for a majority of the population.

 

This is compounded by the fact that when it comes to the change in social status from being an ordinary citizen to a convicted criminal, the first cut really is the deepest. That is to say, the first time a recidivist became a criminal was the worst time for him (or her). It was on that first occasion that he became incarcerated, when up until then he had only been used to freedom, and it was then that he first experienced the change in status that would give him a social stigma and make him harder to employ. If that wasn't a sufficient deterrent, we shouldn't be too surprised that criminals are even less likely to be deterred second time around.

 

Now, it's here that we must mention perhaps the most important word - 'rehabilitation'. A prison system works if it successfully rehabilitates offenders. And, alas, high re-offending rates in the UK shows that prison is not working as well as it could in its quest for rehabilitation. I think that's a better argument for prison 'not being fit for purpose' than saying it's failing as a deterrent - but there is a caveat.

 

I fully support the notion that rehabilitation is a primary goal in the judicial system, but unless deterrence and incapacitation are part of that process, a strong rehabilitation ethos might by itself actually increase crime instead of reduce it. Here's why. If rehabilitation is made a primacy at the cost of diminishing deterrence and incapacitation, would-be criminals will see the cost of committing crimes diminish, and this would likely increase their desire to take risks and commit crimes. Yet equally, I don't actually like the notion of punishment for punishment's sake at all - I don't think it has the desired effect on the individual, even if it does stop would-be criminals trivialising the risks by seeing rehabilitation as a too softly-softly measure. If there is to be punishment, let it be part of the overall effect of incapacitation and a strong focus on rehabilitation.

* Picture courtesy of Facebook