Every society recognizes the need for law, but laws only
work if they are widely accepted. If too many people disagree with a law,
it will be ignored. If people hate enough laws, they will become hostile
to the law-makers. For law to function effectively, we need a set of laws
that everyone accepts.
The key to the rule of law is to find the "highest common
denominator" (to twist a mathematical expression). The highest common
denominator is the set of laws that every one will accept, or at best not
reject (denominator is derived from the Greek word ďnomosĒ, which
means law). The aim is to identify laws that most people will support.Some
basic laws are accepted by everyone everywhere, regardless of their
religion or cultural background. These laws are universal because they
seem to be built into human nature. We do not need someone to teach us
that these things are wrong. We all know that these laws are right.
Definition of a Law
A law has two parts.
An action or behaviour is forbidden. Laws do not tell us what we can
do. They prescribe things that we must not do. The specification of the
law must be sufficiently precise that anyone can understand what actions
A penalty is prescribed for non-compliance. Those who break a law
receive a negative sanction or punishment. This penalty is applied by a
The penalty turns a moral statement into a law. Greed might be morally
wrong, but there is no civil punishment for being greedy, so it is not a
Penalties for Crime
The penalties for crime must have the following five characteristics.
The penalty must fit the crime. The severity of the punishment should
match the seriousness of the crime. A serious crime must have a tougher
penalty than a minor one.
Mercy is sometimes more important than justice and harsh punishments
are not always appropriate. If the person breaking a law has made a
thoughtless mistake, they should be shown mercy and allowed to make a
fresh start. We all make mistakes, so we all need mercy at times.
Innocent people should not be punished. A society should be cautious
when applying punishments, so that the innocent are protected.
The penalty should benefit the victim of the crime. As far as is
possible, the punishment should restore the victim to the situation they
were in before the crime occurred. If the harm they received is permanent
and cannot be restored, they should receive financial compensation to help
The punishment should also deter the criminal from breaking the law
again. If the person is incorrigible, this may not be possible.
However, the punishment should at least make them worse off than they were
before they committed the crime. This will discourage future adventures
with crime. Breaking the law should never benefit the offender.
These five elements of punishment, justice, mercy, caution, restitution
and deterrence must be balanced against each other, without any one
dominating the others. None of these elements is sufficient justification
for punishment on its own.
Two Universal Laws
The following laws are universal laws that everyone accepts. They are
the highest common denominator for human society
Taking something that belongs to another person without their
permission is stealing. This is something that everyone understands. Even
small children get upset when another child takes their toys. This is the
first universal law.
You shall not steal
Stealing takes various forms.
- Breaking into a personís house and taking things;
- Finding something
that another person has lost and selling it;
- Borrowing something from another person and losing it;
- Using another personís equipment without permission;Fraud
- Breaking a contract to sell or buy something at an agreed price;
- Carelessly driving into another personís car and robbing them of
their transport;Driving with an insecure load that falls off and damages
- Allowing a rubbish fire on a property to spread onto a neighbourís
backyard and destroying their garage.
Two questions help determine whether
theft has occurred. Did the goods taken belong to someone else? Were the
goods or service taken without their permission?
The penalty for stealing must ensure that the victim is fully
compensated for their loss. They should get back the items that were
stolen. If the stolen goods have been sold or destroyed, the victim should
get sufficient money to buy replacement goods. If the stolen item has been
damaged, the thief should pay for any repairs that are needed. The victim
should get additional money to cover the income that was lost through the
theft. They should also get sufficient recompense to cover all the
expenses of tracking and proving the case against the thief.
In most cases, the thief would pay three or fourfold restitution to
fully compensate their victim for the inconvenience of the theft. If the
goods stolen are tools and equipment used in production processes, the
loss is likely to be greater, so more compensation will be required. The
theft of a power tool that I need for my work will justify greater
compensation than the theft of a radio of equal value that I only listen
to for entertainment.
Making three or fourfold repayment for all the goods stolen would
discourage a thief from further stealing. To make restitution, the thief
will often have to take out a loan at a high interest rate. The hard work
needed to repay the loan will make stealing an unattractive lifestyle
The level of repayment should depend on whether the level of
responsibility for the damage. If two cars crash into each other after
being caught by a wind gust, neither driver can be held accountable. If
one driver was driving, carelessly, he should compensate the other driver
for the damage, before repairing his own car. If both drivers were being
careless, they should share the expense.
Hitting or striking another person without their permission is a crime.
Kicking, biting head-butting and punching are different forms of assault.
You shall not assault another person
Assault can also involve a variety of weapons.
- An out-of-control car that hits another person.
- A stone picked up from the side of the road and thrown deliberately at
If two men are fighting and thy crash into an innocent bystander, they
are both guilty of assault. However, if the bystander has come closer to
watch the fight, they are mostly responsible for their own fate.
Rape is a particularly serious form of assault, as in addition to the
physical, harm, it causes spiritual and emotional harm.
Murder is and extreme form of assault. The actions are often the same,
but the consequences are more serious. Murder is wrong in every religion
and every culture. Gangsters and thugs may seem to kill people quite
casually, but even they know it is wrong.
Intention to kill is an important aspect of murder. The personís life
is taken deliberately. Manslaughter is a less serious form of assault,
because the person is killed by accident. These situations are not always
black and white. A careless action may result in the death of another. He
did not intend to kill the person, but his action did cause the death of
another, so he is partly responsibility.For example, if the head flies off
the axe of person chopping wood and kills someone walking by, the wood
chopper is not guilty of murder. However, if the he knew that the axe head
was loose and had come off several times before, the axeman would be
partly responsible for the death. In these circumstance, a judge would
have to decide how dangerous risky it was to use the axe and how clearly
the axeman understood the risk. If he had borrowed it from someone else,
he may not have known that the head had flown off several times. In this
case, part of the responsibility might lie with the person who owned the
The penalty for assault must compensate the victim for any damage to
their body. They criminal should provide financial compensation to their
victim according to the extent of their injuries. Head injuries or the
loss of an eye will require more compensation than a black eye or a broken
Assault is a form of theft, because the injured personís ability to
enjoy life or earn money is stolen.If they injury is permanent, the victim
will need compensation for loss of future income. All medical expenses
should be paid as well.
If a person is assaulted by someone to whom they owe money, the debt
might be cancelled by way of restitution.
The financial compensation for a sexual assault will take account of
the physical, emotional and spiritual harm done. Permanent emotional scars
will justify extreme financial penalties. If the assault affects the womanís
prospect for marriage, the compensation should also cover this.Murder is
the most serious crime, so it deserves the toughest penalty. In principle,
the only penalty proportional to the killing of a human is death of the
murderer. If proportionality were the only consideration, the death
penalty would be mandatory, because no other penalty can equate to the
death of another human? No financial payment can fully compensate for a
Justice understands that the parents of a murdered child might want to
kill the killer. However, justice is not justice, if it is not tempered by
mercy. Most people will be uncomfortable about applying a death penalty,
because they have an abhorrence for taking life. They would be reluctant
to kill, even a murderer. Mercy will temper judgment.
The problem with the death penalty is it does nothing for the financial
dependents of the victim. It hurts the dependents of the murderer more
than it hurts the murderer, so true justice is not really achieved.
Payment of financial restitution to the family of the person murdered will
generally be a more satisfactory penalty. This payment would have to be
large enough to compensate for the loss of the life and to make up for the
future earnings lost by the victimís family. The murderer might have to
mortgage his life to be able to make this restitution.Life imprisonment is
not a just penalty. The dependents of the victim do not benefit, because
it is impossible for the murderer to earn any money to pay restitution.
Imprisonment places a burden on society, because they have to pay for the
murderer to live in expensive prison system.
Where a murder is particularly ruthless or cruel, and there are several
victims, financial restitution might not be sufficient penalty. A few
murderers are so evil, that they have no future in normal society. In
these situations, if there are several independent and reliable witnesses
to identify the murderer with certainty, justice might require the death
penalty. Situations with independent witnesses will be very rare, because
most murders are committed in private.
Most people will agree on assault, murder, theft as universal crimes.
Some will want to include adultery on the list. However, human nature
being what is, some people will claim that adultery is not always wrong.
Adultery cannot be included in the highest common denominator.
The two laws above are a universal highest common denominator. Some
people might debate about the penalties, but murder, assault and theft are
crimes in every culture and religion. Even libertarians with no religion
acknowledge these two crimes. We do not need politicians and parliaments
to tell us that these are crimes. Everyone knows that they are
These universal laws are comprehensive, because they provide protection
for life and property. That is about all that law can do. Laws can
influence external behaviour, but they cannot change hearts. They cannot
make people be good. The most that the law can do is provide limited
protection against theft and violence. Law cannot produce good people or
Punishment of crime allows the civil government to use force against
those who break the law. Very few people will accept the right of part of
society to control the rest of our society. We never know when we will end
up a part of a minority, so few people would agree to the right of a
majority to bully a minority (unless they are rich). This means that the
civil government must be limited to doing things that everyone can agree
on. The highest common denominator provides a constraint on government
power, because only thieves, murderers and thugs can be subjected to
Laws that attempt to do more than prevent theft and violence are
generally mooted by people who enjoy telling other people how to behave.
They usually want to force people to be good. This is dangerous because
people disagree about right and wrong. Whereas the two universal laws have
universal support, laws that go beyond them produce endless argument and
disagreement. Their enforcement results in the views of the politically
powerful being forced upon people who do not agree with them. The two
universal laws can be applied without one group imposing their views on
another, because everyone accepts that these laws are just.
Politicians are particularly dangerous, because they believe that law
can solve every problem. They always want the law to do much more than it
can, so they go well beyond the highest common denominator and force a
wide range of laws onto society. They use political power to force the
laws of the majority onto minorities. Even worse, they often force the
majority to obey laws supported only by a minority. Laws that are not
universally accepted are dangerous for everyone.
A highest common denominator approach keeps politics humble. The two
universal laws are voluntary because people are not forced to do things
against their will. This highest common denominator is simple, accepted