The Trade-Off between Restriction and Protection

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at https://www.patternsofpower.org/edition03/5411.htm)

There should be a clear net benefit of having a law, to justify its restrictions on personal liberty and the cost of its implementation and enforcement.  Negotiations have to consider several aspects of this question:

  • Practicality has to be considered. It is unwise to make laws that cannot be enforced; this is related to their acceptability, as discussed below (5.4.3).
  • A restriction of personal liberty can be justified if its purpose is to protect other people, but there is disagreement about how far it can be justified if its purpose is to protect people from harming themselves. This is part of the wider question about individual freedom which surfaces again later in this chapter (5.4.4) and which also appears in other dimensions of governance.
  • The cost of using the Legal Dimension should not be ignored. Law enforcement costs money, and the penal system can be expensive (5.2.7).  Overall government spending has to be kept within the limits of affordability (3.5.2), so it is necessary to ensure that spending on the law doesn’t displace better uses for the money within the total available budget.
  • Some risk is inherent in almost every aspect of life. It is inappropriate to place restrictions on liberty if the value of people’s enjoyment of their freedom outweighs the risk and scale of adverse consequences; otherwise many sports would be outlawed, for example.

These are all matters of judgement, requiring meaningful negotiation.