The essence of the book is that most of the answers to crime lie outside the traditions of blame and punishment. Even so, with billions of people jostling on this planet we plainly require some rules of conduct which need to be enforced. And you can scarcely write a sentence about trying to cut crime without someone bristling about threats to civil liberties. Wherever they look these people see more and more of the trappings of a police state: erosion of traditional legal safeguards and intrusive surveillance every time we move, use a phone or go on line, or have a DNA test.

Yet I see unprecedented freedom. In most of Europe, Australasia and north America, and in many other places too, liberty is on a roll. For all the very real social problems every country faces, never in human experience have so many of us enjoyed such indulgence, such autonomy, such opportunity for self-advancement and self-expression. The reason we sometimes need more controls is that we have more emancipation.

It is true that until the outbreak of the First World War most British citizens had far less state bureaucracy to contend with than we face now, and some historians like A. J. P. Taylor have painted a rosy picture of unfettered individualism.

Until August 1914 a sensible law-abiding Englishman could pass through life and barely notice the existence of the state, beyond the post office and the policeman¹.

True, there was no need for passports, driving licences or currency restrictions. On the other hand, most of the state powers we have today existed in principle, if not in practice. There were taxes and customs duties, to say nothing of periodic military call-ups. And perhaps Prof Taylor had overlooked impressment which, from the fourteenth to the nineteenth centuries, press-ganged untold thousands of young men into the Royal Navy. In 1914 conscription did not have to be imposed by law; it was enforced by what we would now call bullying by one’s peers – a fierce public disdain for any young man not in uniform. Meanwhile the police, or their forerunners or other citizens might come after you if anyone accused you of a crime, and with less of the etiquette you would expect today. Many of the powers now enshrined in law have simply placed what always happened on a statutory footing, such as the right of fire-fighters to demand entry to your home to stop a blaze from spreading, while others have been protective of the individual. For centuries when bailiffs would come knocking to reclaim a debt, they might well cart you off to prison. (In fact the whole issue of bailiffs is one where even now more and better controls are needed.) Prof Taylor’s nostalgia skirts past many harsh realities.

The Great War is generally cited as a turning point in civil liberties as though governments clamped down for their own sakes under the pretext of national security.  To be fair to the authorities, it was a global conflict, thought at the time to be the war to end all wars; but pressures for new controls were in any case inevitable. Trains, steamships and the telegraph had redefined freedom, soon to be followed by cars, planes and the modern mass media. The old relatively sedentary world was turning faster and faster on its axis, throwing out all sorts of issues that had never seemed important hitherto and, simply as a consequence, recruiting a growing army of inspectors for such things as maritime safety, urban planning, food hygiene, air accidents, medicines, and nuclear waste.

Public anxieties rather than state sensitivities gave rise to a further raft of checkers, often with lawful authority to impose on individual liberty, as with breath tests and seat belts, or to enter private premises for wildlife conservation or to investigate plane crashes, or to ensure hygienic shops and humane slaughtering for meat, or to regulate medicines and stage hypnotism.

Of course many regulations cause irritation, even anger. Parking restrictions are a good example – but it turns out that we can’t do without them. In 2011 the market town of Aberystwyth decided to abolish all parking enforcement, with the noble idea that citizens would behave responsibly without clamps or fines. They didn’t. The town centre became choked and the scheme collapsed. As one commentator put it, it turns out that traffic wardens are less obnoxious than we are ourselves². Libertarians take note.

Freedom and liberty are gigantic concepts, too precious to be trivialised. To those who have suffered the brutality of tyrants some of the arguments we have today about civic control must seem trifling or even frivolous. Hitler did not need speed cameras, CCTV or a DNA database to round up anyone who met with his displeasure, nor would such technologies have expedited his policy of mass extermination. Equally, it’s hard to believe a Data Protection Act would have helped to stop or even slow the Soviet Union’s paranoid purges and gulags.

Of course it is little wonder that after horrors of Nazism and Stalinism, as Europe blinked in dismay at what it had done to itself, the State was seen as the primary danger. That resonated with history (see box below). And of course government will always need to be restrained. But nowadays our fellow-citizens – and even individuals on the far side of the planet – can be a bigger and more immediate threat to our tranquility than totalitarianism.

In any case, over the years human rights migrated from being about constraints against extremism to being seen as a trump card in complex matters of balancing differing views. Civil liberties became championed as though they were entitlements of Nature rather than fashions of law.

Yet, self-evidently, every liberty is relative. Only for hermits can civil rights be absolutes, because for them there are no civilities to be observed. For the most part Homo sapiens is a profoundly social creature. As Oliver Wendell Holmes, or maybe Voltaire, put it: ‘The right to swing my fist ends where the other man’s nose begins.’ The judgements will often be subtle and complex; what if I poke my nose where it doesn’t belong? But ultimately only a libertarian zealot would disagree that a large, dynamic, democratic community needs rules and the wherewithal to enforce those rules effectively. Or as George Orwell put it more ominously, ‘People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.’

Actually, Orwell – as so often – painted a pessimistic picture. We also sleep peacefully because positive behaviour is frequently shaped in a non-intrusive way. We have arranged daily life so that we naturally default to compliance even when our actions are not in our immediate self-interests. The book lists dozens of examples, but think of litter bins, road markings, ticket barriers or automatic billing.

Defining human rights

Through most of history people were subjects rather than citizens. They were at the whims of emperors, royalty and cardinals; so much so that literal belief in the divine right of kings survived in mainstream thinking at least into the eighteenth century³. Not surprisingly, therefore, liberty has tended to be measured by the rights of the individual relative to the absolute power of the monarch. Those entitlements were gained slowly and at great effort, most famously in 1215 with Magna Carta through which ordinary people (or at any rate wealthy men) at last achieved some measure of protection against the sovereign.

Each advance along these lines has been celebrated, rightly, as a triumph of democratic progress. In fact it was the tumult of the English civil war (1642-1651) that inspired the most radical reappraisal, largely through an impassioned debate about how to avoid such carnage in the future. Thomas Hobbes argued (in Leviathan in 1651) that any form of stability, even despotic rule, was preferable to a state of anarchy in which life was, ‘nasty, brutish and short.’ John Locke reached the opposite conclusion: that conflict was caused by the lack of structured fairness in society and that, ‘no-one ought to harm another in his life, health, liberty or possessions.’

Jean-Jacques Rousseau developed Locke’s ideas into a ‘social contract’ which culminated in the French Declaration of the Rights of Man and the Citizen in 1789 – and of course the American Declaration of Independence which had been promulgated thirteen years before.

As Thomas Jefferson, the principal author of the Declaration put it:

Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.⁴

Despite this insight the American constitution borrowed wholesale from English law, thus concerning itself more with the rights of man against his government than with how to safeguard an individual’s rights against his neighbour⁵.
In Europe some of the autocracies were soon overthrown, but sadly the result of revolution was that Locke and Rousseau’s noble ideas went the same way as so many noble families: to the guillotine or firing squad. In France in the eighteenth century and in Russia in the twentieth, one sort of royalty was deposed only to be replaced it by another: the nobility by Napoleon and the tsars by commissars. In each case it was accompanied by terror. No wonder people continued to think of freedom in terms of what the state allowed the individual to do. Then, in 1945, even before the horror of Stalin’s gulags was public knowledge, dismay and revulsion at the scale of barbarity of Nazi atrocities triggered a new passion for defining liberty in relation to the state. A series of laws and pronouncements enshrined the idea of liberty as an armour for protecting the little guy against officialdom. There was the Universal Declaration of Human Rights in 1948 (more often applauded than observed), followed by regional embellishments like the Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms (which could be enforced in the European Court of Human Rights). Human rights became the cause celebre for generations of liberal lawyers.

So, yes, at first sight any moves to curb the freedom of criminals must surely diminish the freedoms of us all. Yet in liberal democracies in peacetime, the most common threats to ‘life, health, liberty or possessions’ come not from government but from fellow citizens. Frankly, I doubt that the great arbiter of enlightenment, Thomas Hobbes, would be really happy with how narrowly we have sometimes defined his fine ideas.

He would approve the fact that declarations, laws and treaties set limits on what the state can legitimately do. But he would say that only some rights are unconditional (such as the right not to be enslaved), most are qualified (such as the right to freedom – but not after conviction in a court of law or detention on grounds of mental instability), and many are aspirations (like the right to decent healthcare). And I suspect he would have been appalled at the degree to which, under the slogan of human rights, some people have sought to constrain our obligations to government without providing for corresponding private responsibilities. Recall the huge battles over road safety measures which angered many libertarians and yet cut the carnage by two-thirds. We now face  a similar struggle to curb dangers from the internet. Like John Stuart Mill two centuries later, and like most human philosophers through history, Hobbes was at least as much concerned with consequences as with principles.

Few human rights are absolutes, and to wave the concept like a banner is to demean the complexity of a challenging debate. I am instinctively suspicious of ‘human rights lawyers’ and ‘human rights campaigners’. Often the enlargement of one right diminishes another.­­­­­­­­­­­­­

In robust democracies it is so-called ‘emergency powers’ we must be wary of, not rebalancing of temptation and opportunity for everyday offending. And we should rebel against the way security, at airports for example, is often an excuse for high-handedness which would be inexcusable in almost any other context ⁵. But on the whole countries do not slide into tyranny by stacking one small reasonable restraint on top of another after open and democratic debate.

Yet to make even that mild caution against the civil liberties lobby is to risk the wrath of libertarian ideologues from the right and an industry of human rights campaigners from the left and centre. They sometimes remind me of the Polish man who awoke from a coma after 19 years to find communism gone, food in the shops, cars in the streets and freedom to travel round the world, and who reportedly declared, “What amazes me today is all these people who walk around with their mobile phones and never stop moaning ⁷.”

³ The theory of the divine right of kings was widely accepted in Britain until England’s Glorious Revolution of 1688 and in France and America until their own revolutions in the following century. Ecclesiastical authority lasted much longer, and survives to this day in, for example, the doctrine of Papal infallibility.