5.4.1.1 The Balance between Restriction and Protection
It is necessary to reach a balance between restriction and protection under the law; curtailment of personal liberty need to be justifiable.
This is essentially a political issue, driven by the differing views of individualists and collectivists. This point is illustrated by media reporting of British party politics over what is termed the ‘nanny state’:
The Cambridge dictionary defines it as “a government that tries to give too much advice or make too many laws about how people should live their lives, especially about eating, smoking, or drinking alcohol”.
The Telegraph supports the Conservative Party and individualist values. An article in May 2023, The British people are now helplessly in thrall to the nanny state, asserted that “These days, we seem to expect the Government to sort out all our problems for us – even our weight”. It argued that people should be responsible for what they and their children eat.
The Guardian, by contrast, has collectivist values. It reported on the Labour Party leader’s defence of protective legislation in January 2024: Starmer to embrace ‘nanny state’ with plan for toothbrushing in schools. “More children are becoming unhealthy, with two in every five leaving primary school overweight. But most damning of all, the number one reason for young children being admitted to hospital is to extract rotten teeth – because it is so difficult to get NHS dental treatment before tooth decay sets in.”
The following points are relevant in achieving a balance between restriction and protection under the law:
● Practicality must be considered. It is unwise to make laws that cannot be enforced, which depends on their acceptability as discussed below (5.4.3).
● A restriction of personal liberty can be defended if its purpose is to protect other people but, as illustrated above, there is disagreement about whether is justifiable if is trying to protect people from harming themselves.
● There is a wider question about whether it is appropriate to legislate over morally controversial issues (5.4.4).
● The cost of using the law should not be ignored. Law enforcement costs money, and the penal system can be expensive (5.2.7). Overall government spending must be kept within the limits of affordability (3.3.8.1), 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. Many sports would otherwise be outlawed, for example.
These are all matters of judgement, requiring meaningful negotiation.
This page is intended to form part of Edition 4 of the Patterns of Power series of books. An archived copy of it is held at https://www.patternsofpower.org/edition04/5411a.htm.