Justice isn’t blind, it’s biased

Published in The Sun-Herald, 1 April 2012

Chances are, you’re a criminal. I know I am. Not the bad kind – the benign kind, who just happens to snap a few laws going about my daily business. Jaywalking, maybe dumping a sly coffee cup when I can’t find a bin, riding a bike without a helmet, driving a little bit too fast on some roads. Low-level internet piracy, not buckling up in cabs. Actually the list goes on. But all in all a middle-class kind of a criminal, who doesn’t cause harm to anyone. So why do these laws exist?

Australians are generally relaxed about the government’s intentions. We take the spirit of the law as being there to protect us and therefore accept its various iterations. We generally feel that the government is on our side, says David Hetherington of Per Capita – and that attitude is reasonably well founded. I agree with him, but laws which can be broken without consequence to ourselves or society are at best redundant. At worst they become arbitrary powers that law enforcers can choose to wield against some people only, or on some random days.

Especially for the middle class and upward, many laws could be considered merely guidelines. Spend a night out on the town in Sydney and you’ll see cocaine used as though it’s as legal as booze. And it may as well be for the smart set, who rarely get arrested for its use. A 2000 Institute of Criminology report into cocaine users split user types into injecting and non-injecting – they may as well have split the group by socioeconomic strata first. Ninety per cent of injecting users were unemployed versus only nine per cent of non-injecters. And, unsurprisingly, none of the non-injecters had a prison record.

It’s that second stat which is really interesting: if we were being glib, we could say that injecting should be illegal rather than cocaine, as it’s injecting and not the drug which correlates to criminality. That’s nonsense of course. Indeed just as questionable as the assertion of a 2012 Institute of Criminology report which announces that “there is a strong association between drug use and crime”. So there’s a correlation between committing crime and committing crime? Well blow me down. Do we really keep such laws so we can use them just to condemn the already condemned?

The answer is probably ‘yes’. Just as legendary mobster Al Capone was nabbed on a tax charge, we keep a lot of laws we don’t uphold to use against the people who aren’t ‘us’. The hoi polloi who might not be as civilised as we are in doing as we please.

But arbitrarily enforced laws eventually create a fundamentally unjust society, one in which there is scope to punish people for being poor and inelegant. And though Australia is generally a low-corruption country, an arbitrary law can allow for the kind of less than ethical behaviour we indulge in subconsciously – allowing a pretty person to get away with more, for instance, while a plainer one is punished.

So rather than continuing to live our lives like well-husbanded cattle, vaguely aware we may end at the government knacker, we should question whether it is even moral to allow these laws to remain in place. Henry Thoreau championed the practice of civil disobedience in his 1849 essay, proclaiming that “under a government which imprisons unjustly, the true place for a just man is also in prison”.

In light of the Institute of Criminology’s warning that prison may turn us into druggies, perhaps it’s safer to challenge our legal system from the airy side of the gaol cell. This means examining every new law that threatens to pass and every law our legal system continues to uphold from a perspective of common sense and consistency. We should ask each time a new law looms whether it needs to be law or whether public education will suffice; whether the law could have unintended knock-on effects, who the law actually protects and whether they wouldn’t be better protected anotherwise.

“It is not desirable to cultivate a respect for the law, so much as for the right,” said Thoreau in Civil Disobedience. So the next time you walk against the lights, wonder if there aren’t other laws you might sensibly disregard. And let the government know about them.

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