Never underestimate the paternalism of the state

Jack M. McClure

November 3, 2018

As a first-year law student, I’ve just come across the infamous case of R v Brown (1993) – a testament to the lengths to which a moralising state will go in order to uphold public safety. For those not familiar with the case, it concerns a group of gay men who were convicted for taking part in a sadomasochistic sex club. Despite giving clear consent to each other, and setting up a “safe-word system” to prevent miscommunication, the men were found guilty of “unlawful and malicious wounding” and actual bodily harm.

To quote Lord Templeman: “society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”

Let’s not forget, 25 years on, this is still good law, and relevant precedent today. It is, simply put, a judgement based on a black and white mentality: the idea that because something is seemingly reprehensible it is the duty of the state to ban it.

I am not advocating the view that sadomasochism is a good thing – you, the reader, are free to take your moral view on it. But let’s not confuse morals with legal mandates. This was an activity conducted in total privacy with willing and informed people. It was far from a scenario in which people were being coerced into being beaten for the pleasure of their captors.

In England, we have the longstanding principle that “an Englishman’s home is his castle”, which is not simply a romantic turn of phrase. This maxim, combined with the harm principle as formulated by JS Mill, underpins the foundations of modern civilisation, which is based on property rights, personal responsibility, free and informed decision-making, and autonomy.

Despite Lord Templeman’s claim that “cruelty is uncivilised”, what is equally uncivilised is a state that seeks to hold the monopoly on all that is moral and righteous – and therefore permitted.

We have laws to benefit the common good. Criminalising conduct, such as what happened in Brown, blurs the line between the public and private sphere. If I cannot engage in actions in my own home that are deemed, according to Lord Templeman, to promote a “cult of violence”, what about expressing opinions? If one is of the viewpoint, such as Lisa Feldman Barrett writing for the New York Times, that speech “can be a form of violence”, then according to this logic, we should be preventing people from expressing certain opinions in the privacy of their own homes.

This infantilising approach isn’t restricted to the judiciary – MPs are often the worst offenders. Although the Liberal Democrats, inspired by the reforms in Canada, have recently pledged to legalise recreational cannabis, none of the other parties has followed suit. Although the Labour Party has indicated an interest in allowing medicinal cannabis to be available to the public, the Conservative frontbench, unfortunately, has maintained its hardline stance against drug legalisation.

This is a public health issue. Practically speaking, legalisation would make consumption safer, but we must be guided by principle here too. I don’t use cannabis recreationally. But I find it absurd that the state can so flagrantly claim that it knows what everyone’s best interests are – particularly when other substances such as alcohol and cigarettes are so readily available to the public. This isn’t about celebrating its usage, it’s about reclaiming our personal autonomy and responsibility away from the government.

Whether it’s a Labour or Conservative government, there are always people in power who pursue a degree of moral prescriptivism.

Of course, we should want people around us to be safe, healthy and secure. But involving the government in the intricacies of our private lives is to the detriment of the public. I believe in a society in which individuals, rather than the state, decide by themselves what their needs and requirements are. It seems that right now, by contrast, we are living in a one-size-fits-all era of governance.


Written by Jack M. McClure

Jack M. McClure is a student, and Editor of Barrister not Barista.


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