Category: Prohibitions

This is a topic this blog has addressed before, but the issue never goes away and so the same old points bear repeating.

Law is not magic.

Prohibitions are not spells.

When you make a law against a thing, that thing may not instantly vanish.

It is not as if one points a wand and says something in cod-Latin, and the unwanted thing is thereby extinguished.

The unwanted thing may instead continue, it is just that further instances of that unwanted thing may be attended with different legal and practical consequences.

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Of course, there should be certain prohibitions.

But it is naïve – indeed magical – thinking to believe that just because, say, murder is prohibited there will be no more murders.

What the prohibition means is that any further murder can be followed by onerous consequences that would not be present if there was not a prohibition.

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Sometimes perhaps the prohibition may deter people doing the unwanted thing.

At other times, people will still do the unwanted thing, but in a way which means they will not be detected.

Or people will still do the unwanted thing if people believe the prohibition will not be seriously enforced – or if they believe the prohibition cannot be enforced.

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A prohibition in and by itself is not a policy. It may be part of a (wider) policy, alongside the allocation of resources, administrative priority, guidance and “soft” law, publicity, and political leadership.

But to make a law against something is often just as effective as casting a spell against something.

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The prompt for this post is the government of the United Kingdom threatening to do something-or-other if the internet companies do not do something-or-other.

Apparently, according to politicians, it is possible to ban social media use for under sixteen year olds.

The politicians will enact a prohibition [and cod-Latin and a merry wave of the legislative wand], the unwanted behaviour will disappear.

But it would seem things are a little more complicated than that.

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One curse of the modern age (and no doubt of earlier ages, but in a different way) is the belief that there are (instant) solutions to social and political problems.

And because of notions of parliamentary sovereignty, politicians in the United Kingdom believe that just because it is relatively easy for legislation to be passed, then more legislation is the solution to any social or political problem.

Members of Parliament cannot do much, but they can pass laws, and so they come to believe that passing laws is the only thing to do.

But public policy is hard.

Public policy is about effecting wanted outcomes which would not occur, but for the public policy. If things would happen anyway, then there is not much of a policy.

Laws are an important, if not crucial part, of much of public policy. Not just prohibitions, but the creation of discretions and obligations, and of rights. Laws can create legal personality or deem certain states of affairs.

But rarely, if at all, is any law the entirety of a public policy.

And so if politicians genuinely want to get rid – or reduce – an unwanted to thing, they have to do more than impose a prohibition.

Magical thinking is the negation of effective public policy.

For law is not magic, and prohibitions are not spells.