There are two sorts of corruptions — one when the people do not observe the laws; the other when they are corrupted by the laws: an incurable evil, because it is in the very remedy itself.
With these words more than 250 years ago, Montesquieu captured one of the most disturbing problems of contemporary lawmaking: the law itself can be a cause of crime. We are accustomed to think of law as the answer to crime, but research demonstrates that there are several ways in which the law itself can corrupt.
Have you ever felt that a certain regulation is unfair? Or been upset by the restrictive nature of the requirements to access essential services? Have you found some legal procedures to be too complicated to understand or put into practice? Any of these might have prompted you to wonder why on Earth you should abide by such rules, even if you dismissed the thought immediately afterwards. These are situations where the law might inadvertently lead citizens to find ways to circumvent it, often through criminal behaviour. We have identified three main typical scenarios in which the law involuntarily encourages criminality.
When the law is an ass
The first is when the law makes it difficult to satisfy human needs and ambitions. The prohibition of alcohol or heavy taxation of cigarettes in the US, for instance, can encourage the development of black markets and the move to more dangerous products, such as drugs.
The second is the reverse: sometimes the law creates opportunities for particular crimes by introducing benefits or concessions that can perversely invite fraud from those who are not entitled to them. The EU recently recognised that its current VAT regime exposes EU countries to unacceptable levels of fraud. On a global level, the tax regulations of particular jurisdictions – tax havens – lead them to be used for transnational tax avoidance and evasion.
What’s more, if the law gives public officers broad discretionary powers to administer such benefits, this invites abuse and corruption. In Zambia, customary land law gives too much power to traditional authorities in relation to the allocation of land, thus exposing them to bribery.
The third is when the law somehow makes the commission of a crime easier, or conviction for crimes more difficult. This happens when law enforcement is reduced or undermined, or when criminal justice is slow, uncertain or inefficient. “Justice delayed is justice denied,” as the saying goes.
Whenever a statute, regulation or judicial decision brings about one of these scenarios, it will probably carry some unintended increased risk of crime. But this is just the start. The risk can be aggravated by obscure, unreasonable or unjust norms and decisions, unnecessary, disproportionate or counterproductive measures, delayed judgements, or overly complicated regulations that cause frustration and mistrust towards the law, undermining law abidance.
Crime-proofing the law
Some pioneering researchers have studied ways to “crime-proof” legislation so that these risks are reduced. The most impressive effort has been made by Transcrime, a joint research centre of the Catholic University of the Sacred Heart in Milan, the University of Bologna and the University of Perugia. Led by Ernesto Savona, the team has created and tested its Crime Risk Assessment Mechanism, a sophisticated means to assess the potential crime risks inherent in proposed EU legislation.
There are limits. It can only be applied to legislation or regulations, overlooking other sources of law such as judicial or executive decisions. It is designed to assess proposed legislation before it is enacted, but often crime risks emerge only after an act has entered into force. It relies too much on experts, who play a central role in the process, which hinders community participation. Finally, as it is centred on the legislative procedures typically found in the EU or the West, this makes it difficult to export to other nations, such as those in the developing world where customary law has a larger role and where the problem is more pressing.
Back-to-basics lawmaking
What’s required is a more comprehensive, flexible strategy which, to be relevant to countries worldwide, must be based on fundamental principles shared by every democracy: the rule of law, fairness, equality, reasonableness, necessity, proportion, effectiveness, certainty, clarity, and accessibility. The primacy of the law demands that the law is written to the highest standards of quality. Any flaw, distortion or side effect can frustrate its purpose. To set in motion the creation of a culture of high-quality lawmaking that could achieve this, we could establish some minimum steps. For example:
Training: why do we assume that those involved in lawmaking are necessarily good at it? Everyone involved should receive training on how to administrate well and write effective legislation that avoids the unintended corrupting effects of the law.
Continuous risk of crime assessment: assessments of the crime risks implied by laws or decisions should be run before and after they are adopted, and integrated into existing practices.
Participation and transparency: the process of lawmaking should be as transparent and participative as possible. Consultations with relevant parties and the public are a powerful instrument of participation. But to be effective, such participation relies upon education and access to information – which the state has a duty to provide.
This emerging analysis of the law offers promising ways to reduce or prevent the law from creating a risk of crime. In the UK, the Good Law initiative, the consultation principles, and the Regulatory Impact Assessment are excellent examples.
What we need is a better awareness of how the law functions, and the possible distortions it may introduce. With education and research placed front and centre, we could usher in a new global culture of lawmaking – a starting point for a much needed global culture of law and justice.