The Hidden Law does not deny
Our laws of probability,
But takes the atom and the star
And human beings as they are,
And answers nothing when we lie.

It is the only reason why
No government can codify,
And verbal definitions mar
The Hidden Law.

Its utter patience will not try
To stop us if we want to die:
When we escape It in a car,
When we forget It in a bar,
These are the ways we’re punished by
The Hidden Law
W H Auden

The Notion of Rights

Human Rights - the alter of religious faith at which the secular West worships - what are they and where do they come from?

There are basically three claims made as to where Rights originate.
There are 'God given Rights' where they emanate from a divine and unquestionable authority, Rights which proceed from an assumption of the fixed characteristics of human nature and finally the notion of Rights as simply a human social construct.

The problem with the divine origin is that one has to specify a relevent God from the thousands available to various cultures at various times, and that is assuming that the God exists in the first place. In a sense it can be said to be an axiomatic approach to Rights where they are merely claimed to exist as an act of faith.

The origin of Rights in human nature is a more plausible argument. For example, it can be argued that the 'Right of self defence' is rooted in and derived from innate instincts for self preservation. However, it does require some convoluted and unconvincing reasoning to extrapolate that to other Rights such as the 'Right to vote'. It is also not much of a foundation if one has the power to alter Human nature at its genetic source, which will soon be an available technology. Which leaves Rights as a social construct - but what kind of construct?

Typically the acquisition of Rights by an individual or group is at the expense of power wielded by another. For example, in a representative democracy citizens have the Right to vote on who may represent them and who may form the government that rules their society. That Right has been hard won over the centuries by limiting the power of what were once absolute rulers who, in the West, ironicly claimed the 'divine Right of Kings' as their mandate for dictatorship. That power was never willingly relinquished but ceded to powerful groups who could take it by force of arms or the threat thereof. Later the power was dispersed further to the point where the ordinary citizen had a say in who ruled them. However, the process whereby one group wrested Rights from another was in general a negotiation, albeit that one party was usually under more duress than the other.

The result was that the Rights took the form of a contract that delineated a new balance of power. For example, in the case of the Right to vote the other half of the contract was that in return for this Right the citizen agreed that the armed overthrow of the state was no longer a legitimate option. This view of Rights means that every Right is a balance of duties and obligations between parties. Where there is no balance there is no Right. In this respect the above derivation differs from the other notions of Rights which do not necessarily require this balance in order to exist. Another difference is that according to this notion particular Rights are not universal, but are a cultural artefact. Different societies will in general have different Rights (even if they are not explicity named as such) and a different balance between those Rights and corresponding duties. Western liberalism with its emphasis on individual freedom over that of the collective is but one system amongst many and is most definitely not universal despite currently being used as a justification for neo-imperialistism. Even those so-called 'Universal Human Rights' that as are enshrined in various charters, such as that of the United Nations Organisation, are largely a Western cultural construct stemming from the dominance of the West.

This is not to say that we believe that all such systems are equal, or equally desirable, because they are not. Explicitly the Consensus believes that our expression of extended Western liberalism is the most enlightened, progressive and necessary social construct Humanity has created to date. What we do not believe is that this is sufficient justification for military intervention against states and cultures that offend our sensibilities, and even less an excuse for appropriating their resources for 'our' current rapacious economic system. There is no excuse for the hypocrisy of hiding interests behind principles, whether 'humanitarian' or not.

Law and Rights

The implications in terms of law stems from the necessity of upholding equally both sides of this contractual balance, and only recognising the reality of those Rights that have a corresponding legal duty of equivalent weight. When most people speak of Rights they generally mean the Rights of the individual with respect to the most powerful body of all, the one that makes the rules and regulates the balance, namely the state in its various forms.

In our system of government laws are made by our elected representatives, interpreted and integrated into existing law by the judiciary, and enforced by the police (and if necessary the military). These branches of the state apparatus should be kept separate in order to minimise the confusion of these functions and to reduce the likelihood of corruption of one branch by another.

Unless the law is upheld and enforced then the social contract is broken and Rights no longer exist in reality. This is of course what happens when a crime takes place - the loss certain Rights by the victim. But what happens when the state does not keep its side of the bargain? Such an occurrance is most apparent to ordinary people when they are a victim of crime. It becomes patently obvious that the police do not exist to protect the public, and indeed cannot. The police exist in order to apprehend the perpetrator, not protect the victim. The rich, both corporate and individual, buy their own security from private companies. Cash transferred between banks and major businesses is not guarded by the police, and the very rich do not have police officers to protect them if they feel threatened - they hire bodyguards. The only people the police proactively protect are the political ruling elite.

So where does this leave ordinary people? Theoretically, the only recourse is the Right of self defence. However, in Britain as crime has increased over the decades so this Right has been drastically curtailed, to the point where the supposed Rights of the criminal can take precedence over those of the victim. For example, it is not unknown for a burglar injured in the course of a robbery to sue his victim for not maintaining his property in a safe condition! This is not, in our opinion, a correct balance. Within their own home we believe that the citizen has the Right to defend themselves, their family and their property using whatever force is deemed necessary - not, as at present, using 'minimum reasonable force'. Also that criminals who have broken into a citizens home illegally lose all Rights as regard to their own safety. Note that this applies only to individual citizens in their own home. It does not apply to corporate security, nor to those who trespass on private land.

Zero Tolerance Policing

This pragmatic deficiency of policing should not be compounded by the tendency of the police to pick and choose what laws are to be enforced, and when. Although this is most often done to allegedly maximise the use of limited resources it results in several very undesirable side effects.

First, it means that entire categories of crime (and hence law) are no longer enforced except according to the whim of individual police officers. This does not go unnoticed by criminals, who use this as a baseline of immunity from the law.

Second, the selective imposition of law is itself unfair and can quite easily become a tool of oppression and vindictiveness.

Third, the poor always bear the burden of the vast bulk of so-called 'petty' crime that makes life a misery for millions. This is especially pernicious where the petty crime the police do not deign to investigate is aimed against ethnic minorities. The result is a mistaking of incompetence for racism - exacerbating an already bad problem. This in turn creates an appalling situation where the government tries to 'encourage' the police to do their duty by reclassifying whole categories of crime as being 'racially motivated' or 'hate' crime with penalties severe enough to make it worth the police's time to investigate. So not only do we have a crime being punished, but the supposed intent being judged as well as an exacerbating feature uniquely applied to a certain segment of our population ie our ethnic minorities are (theoretically) receiving protection denied the majority.

Finally such a system results in the 'easiest' laws being enforced. This is particularly noticeable where the police preferentially enforce the law against honest citizens eg driving laws, because they are both more lucrative (fines) and because unlike criminals normal citizens generally endeavour to cooperate!

Hence it is our view that law enforcement is to be of 'zero tolerance' unless special and temporary exemption is provided by the state to the relevent enforcement arm under exceptional circumstances.

The Right to use Organised Force

Traditionally the state has retained the exclusive Right to use organised force in the pursuit of the maintainance of law and order within the nation. If it does this effectively then the other side of this coin is that no other organised independent force should be supported by the citizenry. Hence vigilante groups are illegitimate and illegal. It is our opinion that the use of private security companies to augment or replace coercive internal state functions, such as privatised prisons etc also breaks this social contract and should not be tolerated by the people. Private security companies can have no mandate to use force proactively, nor to imprison or detain with the sole exception of this being a necessary precursor to handing the detainee to the police, along with details of the alleged crime. If such a mandate is granted by the state then it has lost its monopoly in such matters and other citizens may, in their turn, create counterparts.

Judicial Balance and Individual Justice

It is of utmost importance that these balanced Rights and Duties be officially and explicitly delineated, and made the fundamental basis for all law. Hence, there are to be no Rights without corresponding Duties, both of which must be legally enforceable to the same extent. Where a corresponding Duty cannot be defined in law no Right will exist. And vice versa.

Another pillar of the law that should be enshrined in legislation is the principle of individual justice. This is essentially the very liberal position that individuals should be judged on their own merits, rather than on circumstances that are beyond their control. It currently exists in legislation against racism, sexism, ageism etc However, this principle often clashes with Leftwing notions of justice involving collectives, most often summed up under the heading of 'social justice'.

Under this concept the Left is willing to sacrifice the notion of individual justice through such ideas and policies as 'positive discrimination'. This is where an individual or group is given special favours simply because of their involuntary membership of a class. Now, this is not necessarily a bad thing one may think. For example, physically disabled people may need special help to enable them to participate in, and take advantage of, facilities that the majority of the able bodied can enjoy. And in this case it is legitimised by the concept of individual justice since it does not specifically disadvantage any given member of 'normal' society. This is not controversial. Whis is controversial is the application of positive discrimination to 'zero sum' situations - that is, situations where one person's gain is another's loss ie someone is being unfairly discriminated against because of characteristics over which they have no control.

To take a topical example, it is suggested that our top universities favour candidates from state schools over those privately educated because the latter get better examination results and the 'disadvantaged' need to be compensated. Given that there are only a finite number of places in such universities, and they are oversubscribed, then some students who have suitable examination qualifications are being discriminated against because of their parents decisions concerning their method of education.

Naturally, in nearly all types of positive discrimination cases the Left seeks a populist 'quick fix' to balance the symptoms of social inequality through unjust methods, rather than solving the root causes of the problem. In the case above it is obvious that state schools should be brought up to the level of the bulk of private education. Not an easy option - but the only legitimate one in our opinion. Similarly, if various ethnic minorities are underachieving the root causes should be found and rectified, no matter how politically unpopular the reasons and remedies may be.

This itself is mandatory upon the state because if individuals are failing through no inherent fault of their own then that situation is fundamentally unjust. Hence our policy that individual justice shall always take precedence over 'social justice'.

Laws and Cultures

A key element of Consensus policy is the belief that different peoples should live under laws of their own making, and that these laws reflect and define the baseline of their culture. It is therefore necessary that no government be able to permanently relinquish its internal lawmaking abilities to either an outside body or by the drafting laws that cannot be undone by successor governments.

We are therefore ambivalent about the idea of a written constitution that cannot be modified by a simple majority of votes (either by government or referenda). Most especially we oppose the idea of the enforcement arms of the state ie the judiciary, police and military, swearing allegience to such a constitution. This is because a situation can be created whereby power is permanently, and legally, removed from the people and their elected representatives.

As things stand in Britain, allegience is sword to 'the crown'. That is, to the monarch as head of state. Over the centuries the monarch in Britain has effectively been stripped of almost all political power, and is (by our unwritten constitution) obliged to sign into law whatever is placed before her by Parliament. What this means is that no law in Britain is irrevocable - all that is required is her signature on relevent legislation presented by Parliament. So, even though, for example, our past governments have subordinated our laws to those of the European Union all that is required to roll them back is the necessary legislation passed into law by the signature of the Queen.

And because our judiciary is sworn to the crown they cannot refuse to implement such laws. It which would be a very different situation if our judiciary and enforcement arms were sworn to a constitution that had subordinated itself to EU legislation. In that case Parliament could quite easily find itself unable to legally change the situation - indeed, the EU could call upon our military to forcibly overrule Parliament. Such a situation appears fanciful at present, but the principles involved are far from trivial.

Crime and Punishment

Finally we come to the 'dark side' of law and order - Deterrence, Punishment, Rehabilitation, and Exclusion from society.

In contemporary society the prison system exists for several, often conflicting, reasons. Primarily these are deterrence, punishment, rehabilitation, and bodily exclusion from society. In the past, and in different societies, people were held pending trial, or the execution of sentence. The concept of prison as punishment and/or deterrence is relatively modern, as is the notion that some kind of rehabilitation is possible or effective.

The modern prison system is not only inhumane but also totally ineffective in any of its supposed roles. A revolution in the way society treats offenders is needed, not yet another reform of an unnecessarily cruel and outdated structure. The concept of prison as punishment must be abandoned, as this undermines its other functions.

However, the notion of punishment, and the desire for offenders to be punished, is strong in the public's consciousness and must not be ignored. Indeed, it is of primary importance that the public has faith in the effectiveness of the judicial and legal system of the nation that underlies the structure of our society. Without this faith will come a disillusionment that will further undermine the freedoms that we now take for granted. These freedoms are not abstract ideological concepts, but real freedoms that really matter to people. Freedom to go out without being mugged. Freedom to leave home without fear of it being ransacked. Freedom to speak out against antisocial behaviour without fear of intimidation or violence. And so on. The list is endless. At the present time, with crime at an appalling level, the emphasis must be on removing persistent offenders from the streets on a long-term basis. The only effective forms of deterrence are the certainty of being caught, and for the peer group of habitual criminals to notice their absence, and to know the reason why.

The first stage will be to change the style of 'community service' orders. At present, it is not visible, to either the public or the offender's peers. Those doing community service should be forced to wear highly visible uniforms so that they are unmistakable, with their name and crime prominently displayed. Everyone needs to see the criminal marked out as such when they are abroad in the community serving their sentence, especially their peers. Community service must revolve around restitution to the victim wherever possible, with notions of rehabilitation or punishment being secondary considerations.

Contemporary high security prisons to should be used only for those convicted of crimes of violence. These prisons in turn should be modified, or built, to resemble university halls of residence. The aim must be to provide high security detention for long periods without dehumanising or institutionalising the inmates. Ongoing programs of work, education or recreation should be provided along with such facilities as necessary for extended family visits, proper psychiatric and medical care etc which are currently severely lacking.

The common view that there is 'something wrong' with persistently violent men seems to be at least partially true. Studies have shown a definite link between (say) birth defects and parental treatment during the first year of life and a subsequent propensity for violence. With most such offenders the family history is very relevant and pioneering psychiatrists have shown that it is indeed possible to 'reform' a substantial percentage of such men. The problem is, of course, that the accountants who run our society feel that too much money is required to do this effectively. This is coupled with the fact that success is invisible. Success is measured by what does not occur, namely repeat violence. The state, however, does not officially recognise such people until they have a record of violent crime stretching over years, and then only when they have committed some act that ensures they are incarcerated at vast expense for a substantial period. If they had been recognised and treated at an early stage then the invisible benefit of them not re-offending, or offending less often, would pay for itself.

Although 'holiday camp' accusations can be levelled at such a scheme, does any sane person really want to spend ten, twenty, or fifty years on such a 'holiday'? We must be wary, though, of laying the blame at the feet of nature. Violent crime is something that has increased vastly over the last few decades, and nobody will believe that it is because our healthcare system is worse now than in the immediate past or even pre-war years, nor that our gene poll has 'deteriorated' over the span of a single generation. The increase in violence must be due to the nature of our society, and the way it differs from that of years ago.

So, it is true what the Leftwing says - society is to blame - but it is not true that they have any answers. The spiralling increase in crime over the past forty years while their policies have been in the ascendant demonstrates this.

The remainder of offenders over sixteen years of age should serve out their sentence in isolated prison communities, villages or towns, designed to be as normal as possible under the circumstances. The aim is to develop a community exactly as in the outside world, with unlimited visiting rights by outsiders, for example friends and relatives. Local work may or may not be provided, along with academic and vocational training. The aim would be to make these towns relatively self supporting. It is envisaged that internal physical security be only slightly greater than in normal society, although surveillance and the carrying of electronic tags would be mandatory. The overall aim would be to separate the criminal from society in a humane and acceptable way for long periods. These towns would also act as a halfway house for those being released from 'real' prison, or as a reward for non-violent or co-operative behaviour. Criminality in such places would be handled as it is at the moment. For the equivalent of non-custodial offences the defendant would be tried internally by a jury of his peers. If the offender is found guilty, then suitable internal by-laws should govern the sentence. For serious crime, including absconding, the sentence would be high security prison, and would be tried externally.

The aim is to demonstrate to the inmates exactly why rules, regulations and community enforcement exists. No doubt the civic leaders and their electorate will make the place into a home fit for themselves!

Finally, the concept of parole should be abandoned. A ten-year sentence should mean just that - ten years away from the community. For those in 'real' prison, the incentive to behave correctly would be transfer to a village in lieu of the old style parole. For those in the villages the incentive is 'real' prison, which is the alternative.

One major objection to such a scheme will probably be cost. However, it is probably cheaper to segregate the criminal element in largely self-sufficient communities, even if they are all on the equivalent of social security welfare, than to maintain an expanded police and prison system in its present form. Indeed, the fact that approximately half of the prison population is there because of alcohol and drug related crimes points to a healthcare problem rather than a 'law and order' one per se.

The unquantifiable social cost of failing to not only stem, but reverse, the trend towards increasing levels of crime should also be borne in mind.

On a more controversial note, the following options should be given serious attention. The first is the compulsory sterilisation of offenders, either habitual or for particular types of crime such as serial rape, baby battering (primarily of male offenders) and so on. The second is the removal of young children from families with a history of criminality, and their placement with foster parents.

Arguments over whether criminal behaviour is due to environmental factors or has a genetic component are irrelevant. We can certainly change one if not both. As for the 'rights' of habitual criminals to perpetuate their lifestyle through their offspring we suggest that by their action they have relinquished the right to be placed in charge of the most vulnerable people in our society, namely children. Surely, the right of a child to be brought up in a morally decent environment outweighs the rights of irresponsible, weak criminals?

This is, of course, the solution that liberals balk at when they review the evidence of generations of child abuse and criminality within families. Apparently, the upbringing of such criminals excuses them, but the obvious solution is never mentioned. In a milder form it might simply mean the placement of such children in boarding school - still cheap at the price.

The third option is corporal punishment - no attempt at rehabilitation, just pure punishment. The benefits are often underrated, and include low cost, swift execution (unlike a prison sentence) and quite possibly a real deterrent effect for younger offenders. The arguments against, such as brutalisation of offender and society, or simply the cruel nature of the punishment will have to be weighed against the benefits above. The other major reason often raised against corporal punishment is the psychological traumatisation of the offender. In our view this is the aim of such punishment and is a plus, not a minus.

To summarise, one can envisage a range of penalties escalating through fines, community service orders, short term low security detention, long term low security detention to high security detention.

The primary aim is to reduce crime, not to rehabilitate or punish; these are secondary considerations. The approach must be pragmatic, and not dogmatic. If it works, use it - if it does not then change it. All we have now is a government 'tough on law and order' that is reinforcing its own failure with our money and our lives.

The Death Penalty

We save until last the discussion of the death penalty. In our view for the state to cold bloodedly take life through judicial execution is unacceptable. And that is making the big assumtion the correct person has been convicted of the capital crime. Simply stated it is immoral. From a spiritual point of view, the offender must be allowed to repent of his crime, no matter how long it takes. The only circumstance where a death penalty is appropriate is where imprisonment is not feasible due to the utter breakdown of society. For example, when your civilian population is starving and dying in a situation of social collapse or national disaster and where imprisoning an offender means resources are being taken away from society to such an extent that others may die because of it, only then is a death penalty applicable.

Finally, for the benefit of the general public, every day there must be an announcement of the crimes and sentences passed on named individuals. Justice must be seen to be done ad nauseam. The alternative to producing a working humane correctional system to ensure that laws are obeyed is not, as many people seem to think, a system whereby crime runs rampant. Ultimately the alternative will be that of nations such as Singapore, where crime has dropped for the sixth year in succession. The reason for their success is obvious, and is why liberals single out this nation as being particularly odious. The laws are enforced impartially in a very brutal and uncompromising fashion. The execution rate is one of the highest in the world and flogging is used extensively. The state is a shining example of how to run an efficient technocracy of the future; a place that is efficient, paternalistic, with very little corruption and a great deal of wealth in a rapidly expanding economy. Singapore is probably the closest thing in the modern world to a National Socialist state, and unless we can find a workable alternative this is the only option we have other than disintegration or chronic low level barbarism, because ultimately people will place their own personal safety ahead of other people's freedom and humanity.

© The Consensus 2002