David Allen Green

A critical and liberal look at law and policy

Should we ban “banning” things?

The political addiction to mere prohibitions.

By David Allen Green Published 08 November 2011 17:31

We all want to ban something. It is a staple of our political culture. All of us are perhaps one moment away from seeking to ban what someone else is saying or doing. The nod-a-long responses of "it shouldn't be allowed" or "there should be a law against it" are the common solutions to many perceived problems.

However, to "ban" something is not actually to eliminate it, whatever "it" is. The "it" is not extinguished; the "it" may just be attended by some different consequences. The legalistic prose in a solemn document is not some magic spell which banishes horrors by invocation. To say there should be a law against a thing is often no more than saying there should be a spell against it.

In fact, "banning" things often creates new problems. In its correct legal form, a prohibition establishes certain legal and coercive consequences should the prohibited act occur: a court order for damages, say, or a prison sentence. Being banned does not thereby stop the thing from happening. It just means that the legal system will be engaged in a way it otherwise would not be.

Moreover, in the complex "real world" of ever-changing and shifting political, social, and economic relationships, the general prohibition (and the coercive sanction) can sometimes only make unwelcome situations more complicated. Some behaviour may well be discouraged (the deterrence effect); but other behaviour will be modified so as to escape detection. Or, the behaviour may carry on as before, but worsened by the criminalization of all those involved. The easily satisfied will have their "ban" but the effects may be unfortunate or unpredictable.

This is not to argue for libertarianism, still less anarchism. It is instead to urge sensible and balanced law-making. There is a positive and essential role for prohibitions and coercive sanctions in our polity. However, such laws should always be made and implemented with anxious scrutiny. Enacting the prohibition is not an end in itself. There should be regard both to the likely effects of the "ban" and to the interferences which will be made to other values important in a liberal society.

So those calling for something to be "banned" should therefore ask two simple questions. First, what will the prohibition do in respect of the undesired behaviour? And second, what other consequences may flow from the prohibition? Good answers to both these questions will inform the political choice as to whether such a ban should be implemented and, if so, how. We may even get better laws as a consequence; we could even get prohibitions that actually work and are proportionate.

The call for something to be "banned" should be the start of a mature and constructive political debate, and not the end of one. Perhaps the time has come to ban just banning things.

David Allen Green is legal correspondent of the New Statesman. He also writes the Jack of Kent blog and for The Lawyer.

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28 comments

Wed, 2011-11-09 13:12 — Mrs.Josephine Hyde-Hartley (not verified)

Yes I agree it'd probably be cheaper all round to ban banning things.Let's face it, a ban is really nothing more than a cheap publicity stunt one would normally associated with weddings.

And when all is said and done -Jesus tells us it's probably better to avoid getting married, going on to explain nobody will be married in heaven. We'll all be like the angels. Just think..in the ideal world nothing will be banned and everything will be free - if only we could have the presence of mind to count our blessings more carefully, here and now.

Fri, 2012-03-23 08:14 — ChurchillDexter

The criminals still have guns (well, they're criminals) and, very sadly, people still get mauled by dogs. Kneejerk legislation is never good, by its nature it is not thought through. It's like meetings; gives the impression of positive action whilst achieving nothing. http://www.helpwithbaby.com/

Wed, 2011-11-09 15:31 — FA

A very sensible approach from DAG - though not one our politicians are likely to take. Politicians think "something must be done - this is something therefore it must be done".

Try not to tell me to FO...

Thu, 2011-11-10 15:34 — ivan (not verified)

What you are drawing attention to is that a "ban" is just one of the many options for "controlling" something. When you realise this, you look for the best way of "controlling" it, rather than the knee-jerk reaction of criminalisation.

Wed, 2011-11-09 16:58 — Mr. Divine (not verified)

Should we ban lawyers who can't answer simple questions I've posed to them about Housing and squatting on the Laurie Penny article?

Have you been having a wet dream or something David? You know what I mean. What someone doesn't know wont hurt them. Wink wink.

Wed, 2011-11-09 17:03 — Mr. Divine (not verified)

We three ships go sailing by
Go sailing by
Go sailing by
Then we stop for coffee at Plymouth Ahrbour

How can wet dreams become reality David? How can revenge be justified in a court of law? Should we ban people from impersonating other people just to ...? get their own back.. to w...

you're starting to crack.

Wed, 2011-11-09 17:10 — Mr. Divine (not verified)

Nicky Nicky Nicky
Stop kissing and licking
some one elses' plate

Wed, 2011-11-09 17:19 — Mr. Divine (not verified)

I've just now this minute banged me head on the end of the door. David. Got a shock I did. You're going to crack like an egg like a wet dream in your bed.

lawyers! Here I come like three ships going sailing by.

Wed, 2011-11-16 23:29 — RFM

SCAL9000, well considering how eagerly bans are received in this country, obviously, we are drones. I think my designation is 62 792 179 of 63 million something or other.

Wed, 2011-11-09 18:52 — Mr. Divine (not verified)

DavidC: here's a question. You being a lawyer should easily be able to answer this.

Is there something happening that you can't explain?

Should we ban a ban on banning?

Tue, 2011-11-08 17:52 — Mr. Divine (not verified)

Yes you need to ban some things for the moment... guns, armament production and export, heroin and other drugs .. keep the beer and wine ...child pornography, violent sexual movies and images, aggressive 'clothing' (e.g.Nazi signs). I would like to see tattoos banned .. they are like a negative image ... but obviously that is not a good idea at the moment. Big Tax on Tattoos!

Tue, 2011-11-08 18:12 — abdul hafezi (not verified)

yes you do.There has to be code of conduct and penalties for wavering. referral fees have introduced financial incentives which has led to increase in compensation culture.

Tue, 2011-11-08 18:18 — MikeHypercube (not verified)

To the extent that governments try to ban something, they are opting out of governing that thing. Arguments which conflate "this is bad" with "this should be banned" are framed so as to presuppose that banning bad things is the only available response to badness. If this were the case, surely the body expected to carry this out should be called a banishment rather than a government?

Tue, 2011-11-08 18:23 — timbk (not verified)

To Mr. Devine. why do you need to ban even more guns? You've taken my pistols and self loading rifle. All I have left is a 12 bore for game and a .270 for deer. Pick on someone else if you don't mind. Ta...

Tue, 2011-11-08 18:27 — Sir Michael (not verified)

http://news.bbc.co.uk/1/hi/4581871.stm

Needless to say, I agree wholeheartedly with Mr Green. The knee jerk response to ban everything that one doesn't like from video games to Elvis is not the mark of a politically mature society.

Tue, 2011-11-08 18:30 — Sciamachy

I'd argue against banning things, but in favour of punitive damages against people harmed by whatever the thing was - so, for example, drugs are legalised, but if you steal to fund a drug habit, you have to make restitution for the theft. Go for harm reduction - and if it harms nobody, it's no harm, no foul.

Tue, 2011-11-08 20:20 — Nodbod (not verified)

They banned guns and dogs (certain breeds). The criminals still have guns (well, they're criminals) and, very sadly, people still get mauled by dogs. Kneejerk legislation is never good, by its nature it is not thought through. It's like meetings; gives the impression of positive action whilst achieving nothing.

Tue, 2011-11-08 21:15 — Anon (not verified)

I hear what you're saying dude, nobody wants to be struck off for a wee toke..

Tue, 2011-11-08 22:39 — swatantra

No. Banning must be followed up with tough punishment for those that contravene the ban.

Wed, 2011-11-16 12:22 — SCAL9000 (not verified)

The level of debate in these comments is so poor it really makes you wonder if we have any hope of sensible policies in this democracy of ours.

We should not ban anything that an intelligent adult could reasonably be expected to take an informed decision over.

We have but one life, if a government tells me how I should live it even in areas where I will harm no-one but myself, this is tyrrany. My life, not the governments. They are here to SERVE US, not the other way around.

Are we drones or are we free?

Wed, 2011-11-09 00:10 — Chir0n

@swatantra nandanwar- yes, because that's worked really well so far, hasn't it?

@Sciamachy- stealing's already illegal, why make a distinction between stealing to buy drugs - if they've been legalised - and other theft?

Also, presumably the drugs, if legalised, would be a lot cheaper so people probably wouldn't need to steal to buy them.

Wed, 2011-11-09 00:37 — oswald (not verified)

coalition governments ?

Wed, 2011-11-09 08:59 — Sciamachy

Chir0n - exactly. Point is, don't ban the drugs, ban the activities that do harm to others. Let people do what they want as long as there's no physical or financial harm to others.

Wed, 2011-11-09 09:51 — swatantra

Even tougher punishment, especially when it comes to drugs alcohol and tobacco, and benefits fraud.

Wed, 2011-11-09 10:21 — Indu Pendent (not verified)

@Mr Devine - but those are all leading UK exports. If you banned them then the person in the North with the job would lose it and would riot causing £2.5 of damage. Waterstones would be OK as children of the Labour project riot but dont read books.

Wed, 2011-11-09 10:45 — swatantra

... and tax dodgers.