The passing of law is often rationalised on the basis that it will deter people from behaving in ways that are deemed unacceptable to society. The assumption presumably for this approach is that society behaves according to the laws it creates. The rationale seemingly being that the more laws we enact, the greater the number of deterents and therefore less crime? The difficulty of course is that we can never identify those whose behaviour has been detered.
How many people have considered shoplifting but have refrained by the thought of the consequences of being caught? Who knows? All we can ever say is that a percentage of the population remain undetered and a small percentage will be caught and pay the penalty imposed by the law. Those in the retail trade will generally state that only 10% of the shoplifters are ever apprehended. I suspect this statistic applies to all forms of crime and is well known to the criminal fraternity who rate their chances of avoiding detection as being quite high.
Law deterent theories therefore are probably more a mindset of the majority of society to enable the enactment of laws that penalise those who do not conform.
So as a consequence of a self fulfilling prophesy it is probably true that the majority of citizens do feel detered but for those who do not respect the majority viewpoint, its difficult to believe that they also feel that same deterrent?
So perhaps we should accept that there will inevitably be differences, and that a 51% majority is all that is necessary to justify a law whose penalties are directed at the minority 49%? After all we do have a democratic process and the 51% will not necessarily be the same after each three yearly election.
Deterents and penalties however have a negative connotation and tend to alienate, separate and divide.
Encouragement, incentives and rewards on the other hand are inclusive, supportive and bonding. Unfortunately these characteristics are rarely seen in our law making system.
The concept of going to a Law Court to be rewarded for good behaviour just doesn't happen.
Our legal system is adversarial in its construct, defines winners and losers and constantly evolves societies definitions of unacceptable behaviour.
The emphasis is invariably negative.
So could a positive law be imagined and enacted.
I believe so.
Wouldn't the idea of rewarding people for not breaking societies laws be constructive? For instance young people who have not committed crimes, who have trained to lead independent lives and who have not been reckless in their behaviour could be given help with housing or other financial demands, after having served their "apprenticeships" (say 10 years?).
Motorists who have proven to have sound judgements and been accident free for a period of time , might be rewarded with discounted fuel taxes?
Those who have looked after their body weight (and therefore less likely to find themselves hospitalised) by the age of 50 could be rewarded by a "Green Card" that gives them GST discounts at the supermarket.
The possibilities to incentivise, reward and unify through the legal system are boundless.
We just haven't tried.
The Commercial sector has been doing this for years, but our lawmakers haven't seen the need to follow suit.
Perhaps those with vested interests in the present legal system may feel that positive laws might actually change behaviour constructively and reduce the need for legal intervention?
To Encourage or Deter...that is the question..
Probably a bit of both..