Should we ban “banning” things?

The political addiction to mere prohibitions.

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.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Nigel Farage's love for Dunkirk shows how Brexiteers learned the wrong lessons from WWII

Film has given Britain a dangerously skewed perspective on World War II

For months now it’s been hard to avoid the publicity for what seems like an epidemic of new World War Two films for 2017. June brought us Churchill (starring Brian Cox), which concerns Operation Overlord and the allied invasion of Normandy in 1944. A month later, in July we were pushed back four years, to Dunkirk, with Christopher Nolan’s film of the evacuation of Allied troops from French soil in the summer of 1940. April had already brought Their Finest, a comedy about making a - let us not let the irony go unacknowledged -  stirring film about the evacuation of Dunkirk in the event’s more or less immediate aftermath and November will bring us Darkest Hour, some events in which will predate all three earlier films, as Gary Oldman’s Churchill struggles through the earliest days of his war premiership.

This glut is peculiar. There are no significant round anniversaries to commemorate (e.g. Dunkirk is 77 years ago, the Normandy landings 73). More, we’re meant to be in the middle of a series of commemorations of the horror and waste of the Great War of 1914-18, but that seems to have slipped away from us in the political turmoil that’s engulfed this country since 2014. Instead, it’s to the Second World War we return yet again. To modern Britain’s founding myth.

It’s a coincidence, of course, that these films should come along together, and at a seemingly odd time. They were developed separately, and films takes so long to conceive and produce that no one could have anticipated them arriving together, let alone arriving in a toxic Brexit Britain where they seem like literally the least useful things for anyone in the UK to watch right now. As works that will inevitably, whatever their own creative intentions and merits, be hi-jacked by a press and political culture that is determined to gloss its opposition to the UK’s membership of the European Union, and its appalling mishandling of the process of exit with garbled references to, the conflict the films portray.

This is an impression that is not exactly dismissed by Nigel Farage posting to twitter of an image of himself standing next to the poster for Dunkirk, along with a statement in which he encourages all young people to see the film. For what reason, we’re entitled to wonder, does he make this encouragement? Does he admire the sound design? Or the aerial photography? Or is he just a big fan of Mark Rylance and Harry Styles? Or perhaps he is, inevitably, indulging in a behaviour that some might call "nostalgic"? Of pining for the past. Except, of course, nostalgia requires an element of pain. The suffix "algia" the same as employed when referring to chronic conditions. For Farage and his ilk there is no pain in this behaviour, just the most extraordinarily banal comfort.

Farage is asking us and asking the young who voted against his chosen cause by an overwhelming majority, and who are are sickened by where he and his ilk have brought us - to share in his indulgence. To enjoy, as he does, those fatuous analogies between the UK’s isolation between Dunkirk and Pearl Harbour with its imminent failures in European politics. To see that "escaping from Europe with nothing is at least better than not escaping at all". Or to believe, once again, in a "plucky little Britain, standing up against the might of a wicked mainland European tyranny, its back against the wall".

All this, confused, indeed nonsensical, as it is, is being invoked, as surely as the anti-EU right have always invoked Churchill. This is despite his own family recognising him, as the EU itself does, as the fervent pro-European he was. Indeed, he was one of the founding fathers of the whole post-war pan-European enterprise.

What Farage and his behaviour demonstrates, yet again, is that British culture, in many ways, learned not merely the wrong lessons from the war against Hitler, but exactly the wrong lessons. It’s a lesson that found its most enduring, poisonous expression in Margaret Thatcher’s breathtaking assertion that the European Union was a "third attempt" by Germany to take over the world.

In contrast to the rush of war films in cinemas, television has recently given us glimpses into theoretical worlds where Nazism did succeed in conquering the planet, in Amazon Prime’s The Man In The High Castle and BBC One’s SS-GB. There are lessons too, in these alternative histories, proper lessons that we have collectively failed to learn from the real one. Which is that fascism or authoritarianism are not diseases to which anglophone countries are somehow miraculously immune due to [insert misunderstood historical fetish of choice].

The Man in the High Castle, particularly in its more subtle first series, goes out of its way to show Americans that their lack of experience of collaboration with Nazi occupation is a result of circumstance, even luck. Not because collaboration is a peculiarly European tendency. SS-GB also worked hard to demonstrate the helplessness of occupation, and how that leads to the sheer ordinariness of collaboration. Both show the understanding that while fascism from the outside is funny accents and funny uniforms, fascism from the inside is your neighbours informing on you and the absence of the rule of law.

That experience of occupation, of subsequent complicity, and humiliation, felt by many other other European nations, is absent in Britain. Farage’s fellow Leaver Liam Fox, without anything resembling self-awareness, asserted that "the United Kingdom is one of the few countries in the European Union that does not need to bury its 20th century history". Fox’s remark summed up, again seemingly unintentionally, the oafishness of the principle Brexiteers. A group who exemplify a culture that boils a vast and unimaginably complex conflict down to the title sequence of Dad’s Army - an animation in which a Union Flag is forced off the European continent by a trio of Nazi triangles, and after returning home bobs around defiantly. A group who, in a strange and witless inversion, have fantasised themselves into a position where they see the Britain’s membership of the European Union as the occupation the country once avoided.

This is the UK’s postponed tragedy. At a timethat European countries experienced national humiliations which fundamentally reconfigured their understandings of their place in the world, the UK got yet another excuse to shout about how much better it was than everyone else.

I’m a child of the very late Seventies. I grew up in a world where (British) boys’ comics were dominated by war stories rather than science fiction or superheroes, where literally everyone knew several people who had fought in World War Two - and almost everyone someone who could remember World War One. That war was the ever-present past. I am, as a friend who teaches history neatly phrased it "Of the last post-war generation." After me, the generations are post-post-war. They are free. The moral clarity of the war against Hitler has, in the end, been a curse on British culture - a distorting mirror in which we can always see ourselves as heroes. 

But, not, of course, all other generations. The war generation collectively (I make no claim that there were not exceptions) understood what the war was. Which meant they understood that the European Union was, and is, its antonym, not an extension of it. Unlike their children and the eldest of their grandchildren, they had real experience of the conflict, they hadn’t just grown up surrounded by films about how great Britain was during it.

The Prime Minister who, or so he thought, had secured Britain’s European destiny had also, as he related in his autobiography, seen the devastation wrought by that conflict, including by shells he himself had given the order to be fired. Like Helmut Kohl, whose worshipped, conscripted older brother died pointlessly fighting for Hitler, and Francois Mitterrand, himself captured during the fall of France, his experience was real and lived, not second hand.

This can be seen even in the voting in 2016 referendum. That the young principally voted Remain and the old voted Leave has been often noted. But if you break that over-65 vote up further, there’s a substantial flip to back towards Remain amongst the oldest voters, the survivors of the survivors of World War Two. After all, someone who is 65 today was born nearly a decade after the war ended. It was their parents’ war, not their own. A war that has been appropriated, and for purposes of which those who fought in it would, collectively, not approve.

Let’s return to Dad’s Army, after all, BBC Two does often enough. Don’t Panic! The Dad’s Army Story (2000) a cheerful history of the sitcom great written and presented by Victoria Wood contains a telling juxtaposition of interviewees. The series' surprising continued popularity is discussed and Wendy Richard (born 1943) expresses a nostalgia for the war years, and how people banded together during them. This is a sentiment which Clive Dunn (born 1920) bluntly dismisses. “Like most people I had a foul war,” he says, and disgust and horror briefly pass across his face.

It’s the difference between those who remember war, and those who only remember war films.