I’ve been chatting with R for the past few months about a subject dear to both our hearts, equity within the Irish legal system. I’m referring to impartiality here, to be completely unambiguous. We’ve researched jurisprudence which is the analytical study of legal reasoning which attempts to unravel the ethical, social, cultural and historical contexts for laws and legal precedents. Jurists often acknowledge the futility of the field of study but it’s worthwhile thinking about the legal system in the context of Irish attitudes to the state, the legal system and regulations in general. In particular I’ve been thinking about John Austin the 19th century British jurist who’s command theory of law is outlined in his 1832 book The Province of Jurisprudence Determined. The command theory states that a law is distinct from natural order or morality and is “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”. The more powerful being is often an all encompassing sovereign. Non-compliance is punished by a sanction. Many of the weaknesses pointed out in Austin’s theory seem to me to be pedantic and it will suffice here for further discussion. In Irish society we have several major problems in promoting legal obeisance.
- Many laws (e.g. speed limits on sections of roads) are indirectly invoked by local council rather than central government. There is a general perception that some of these laws are misguided, shouldn’t be enforced and wouldn’t be enforced. They meaning elected representatives appear to be persecuting people needlessly. This may not be the case but the perception of a law affects its adherence
- Sanctions are clearly not equitable in the area of white-collar crime. There are many examples of lovable rogues or “cute whoores” to use a common colloquialism who have been implicated in bribery and corruption but are still at large. Instead of sanction, they gain notoriety.
I can think of one well known meat baron whose company was demonstrated to be involved in fraud with minimum social, financial and legal sanction. One former Taoiseach effectively held a bank to ransom while minister for finance to avoid paying his own personal loans. Let’s ignore the recent scandal of Ivor Callely. It’s crass lawlessness at the highest level of government. Yet, it goes effectively unpunished as the Irish love a rogue.
Ultimately after the extravagantly expensive Moriarty and Flood tribunals what the country needs to see is sanction. Not excessively punitative but real financial and social sanction of those implicated in corruption. Those involved in racketeering, corruption and bribery should not be lionised, praised or sniggeringly regarded. The banks should be prevented from rushing to the aid of white collar criminals in a greedy web of self-interest that creates an entirely partisan system of justice. The good news for the people of Ireland is that the remedy begins at home. We’re a nation of habitual law breakers. A broad sweeping statement but unfortunately true. Practically all of us think a small crime, evading a bit of tax here, speeding there, drinking a bit too much then driving is perfectly OK. It’s no surprise, we’re a country forged in rebellion and we often have an pschizophrenic attitude to the tragic-drunk, the gangster, the rioter and indeed the gunman. What should we do to counteract this?
Something like California’s 3-strikes rule would be a start. This could be adapted to be more sensible and less punitative but from studies on the subject, it sure as hell works. The combination of automatic punitative fines and some jail time would make people pause for thought before drink driving or committing white-collar fraud. Another step would be to stop apparently over-zealous restrictions being enforced before any evidence is provided that they’re required. E.g. don’t have a 60 km/h restriction on a dual-carriage way (as in waterford) when there’s no reason for it that stands up to scrutiny. On this stretch of road I’ve counted 10 cars in the past 2 months driving within the limit but I’m not aware of any incidents that justify a limit of under 40mph for what is the best stretch of road in the greater waterford area. Other similiar crackpot ideas that I’ve heard discussed and advocated by local councillors include banning hooded sweatshirts in an attempt to prevent crime. Incredible but true. I agree with Austin and Bentham’s assertion that laws should be clearly utilitarian and practical or they won’t be enforced or enforcable. Rather than blame the goverment and the law makers we need to understand that we elect the goverment and our transgressions shape the laws. The buck stops right at your own door, not a faceless and criminal element that is somehow responsible for all the ills in Irish society. Instead it’s the upwardly mobile individual and socially respected individual who buys recreational drugs from the gangster, who stashes money in an offshore account and who buys expensive gifts for local councillors and planners to curry favour who’s the real culprit. In this celtic tiger economy this person is everywhere. Perhaps the people get exactly what they deserve?
I leave it over to the more than capable hands of Irish Minister for Justice, Michael McDowell to sort this mess out.