A Point of View: Why rules aren't pick-and-mix

Paul McCartney and Mick Jagger in a first-class carriage 1967

Got a ticket to ride in that first-class carriage? You may not like this rule, but what would happen if we only obey those regulations we agree with, asks historian Mary Beard.

On the train I often take between Cambridge and London, there is a fierce notice on the screen that separates first class from standard. Anyone who sits in this compartment, it threatens, without a first-class ticket, is liable to a fine of up to £1,000, or up to three months' imprisonment.

I find myself having two reactions to this.

The first is to think that the world has gone Completely Barking Mad. Three months in the clink for sitting in a first-class seat with the wrong sort of ticket? Do we really take incarceration so much for granted that this seems somehow normal as a punishment?

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Mary Beard
  • Historian Mary Beard is professor of classics at Cambridge University
  • A Point of View broadcasts on BBC Radio 4 on Fridays at 20:50 GMT and repeated on Sunday at 08:50 GMT

Perhaps, I like to fantasise (when I'm not planning how to deface the damn thing), this notice will end up in some school history textbook of the future, to illustrate for kids of the 24th Century the 21st Century's fixation with locking people up.

But there's more to this than a disproportionate threat of punishment. I also find myself thinking about the rules and regulations this notice is trying to uphold.

At first sight, it all looks so simple: first class on one side of the screen, standard class the other; you get your ticket and you know your place; the more you pay, the better your seat.

But doesn't it ever cross our minds that there is something faintly absurd - or terribly old-fashioned - about dividing passengers on a commuter train into two classes? You wouldn't expect there to be two classes on a bus, would you? (Mind you, there did used to be special first-class carriages on the London Underground - and there still were on the Paris Metro until 1991.)

I'm not advocating a mass invasion of first-class compartments the length and breadth of the land.

Sign on German train indicating first-class carriage

It's been a major tenet of good government, at least since Plato, that citizens should obey the laws of their state whether they approve of them or not. If we were all to treat laws like a menu, only obeying the ones we happened to fancy, society could hardly survive.

Death of Socrates

Death of Socrates
  • Challenged the moral complacency of fellow citizens, and the contradictions of their lives
  • Condemned to death for impiety and corrupting the youth of Athens
  • Believing it would be unjust to deprive Athenians of his execution, he killed himself by drinking a cup of hemlock

That, said Plato, was one of the reasons Socrates had for not running away, but for staying and drinking the hemlock, when he was sentenced to death in 399BC. As he saw it, obedience to the law was the crucial contract a citizen made with the state.

But that basic point shouldn't stop us reflecting a bit harder on the laws we live by. It's easy to fall into the trap of imagining a perfect fit between what is bad, morally or otherwise, and what is illegal. And it's easy to forget that accidents of history can have a lot to do with what we choose to criminalise or regulate. The fact that there's no first-class on a bus is surely connected to the fact that buses were traditionally an unprivileged form of transport anyway.

And besides, the fixed boundaries that the law tries to lay down often don't match the messy realities of life as we actually live it. Who, after all, wants to penalise the old lady who has just sat down in the empty first-class carriage when there is no seat left in standard, ticket or no ticket.

Of course, this applies to a great many more important things than the rules and regulations of public transport.

Start Quote

If Walter Raleigh had come back from the New World with a load of marijuana, we'd now be buying packets of 20 spliffs at the corner shop”

End Quote

There must be countless parents in the country who have struggled with their children's questions about why some substances that are undoubtedly bad for you - such as tobacco and alcohol - are legal, when some that are probably, but less certainly, bad for you (such as cannabis) are banned.

Most of us - who, frankly, wouldn't greet the criminalisation of alcohol with equanimity - will have resorted to some version of an argument from history.

We wouldn't put it quite this way to the kids, but the essence is that if Walter Raleigh had come back from the New World with a load of marijuana on board, likely as not, we'd now be buying packets of 20 spliffs at the corner shop (with some hefty tax levied too), and we'd be going to prison for selling each other tobacco.

An even more complicated example is the law's attempt to draw boundaries between childhood and adulthood. Different minimum ages have been set in different areas and for different things. In this country - to continue the substance theme - you can legally:

  • consume alcohol at home from the age of five with your parents' consent (presumably someone is liable for prosecution if a toddler raids the drinks cupboard)
  • but you can't buy the stuff until you're 18
  • you can get married, again with consent, when you're 16
  • but not vote - except in Scotland's independence referendum - until you're 18

Written down it all looks a terrible mess. And, in part, it has to be. For the law could not possibly be equal to the simple fact that there is no universally applicable boundary between the child and the adult. It doesn't take much to see that some people are grown-up at 14, others are still children at 17.

That boundary is an even more edgy one when we think - as we've had to quite a lot recently - in terms of sex.

Age and sexual maturity

In European countries with lower ages of consent, there is legal provision to protect teenagers from being sexually exploited by adults

There is not a sane person on the planet who would condone the sexual abuse or exploitation of children. But it is not so easy to decide who counts as a child. And indeed different countries, even within Europe, have fixed the legal age of consent very differently:

  • 16 for the UK, the Netherlands and Belgium
  • 18 in Malta
  • 17 in the Republic of Ireland and Cyprus
  • 15 in France
  • 14 in Germany and Italy
  • 13 in Spain

At first sight these are extraordinary discrepancies. But many countries have made careful provisions to decriminalise two young people having sex together, while making it illegal for an older person to have sex with a younger one.

If you believe the average Eurosceptic, you can't even grow a Granny Smith within the EU unless it conforms to the standard size, yet something as important as the age of consent varies from 13 to 18.

The issue, I think, is not one of moral values.

I don't imagine that the Germans with an age boundary of 14 are less bothered about the sexual abuse of children than we are. The question is how you use the law to deal with it, and the different calculations you make about the pluses and minuses of fixing the line at any particular age. 

The man who raised age of consent

William Thomas Stead
  • William Thomas Stead, born 1849, credited as UK's first investigative journalist
  • Wrote series of articles uncovering child prostitution in 1885
  • Jailed for three months for proving his case by buying 13-year-old Eliza Armstrong for £5, before handing her over to Salvation Army
  • Helped force through long-stalled legislation - 1885's Criminal Law Amendment Act - to raise age of consent from 13 to 16
  • Drowned when the Titanic sank in 1912

It's worth asking, though, why the UK has invested in the age of 16.

The answer is that it goes back to the Criminal Law Amendment Act of 1885. Before then, since the 13th Century, the age of consent had been 12. It was raised at a stroke to 16 because of a pushy investigative journalist's campaign about child prostitution in the Pall Mall Gazette, the ancestor of our Evening Standard.

The series of articles entitled The Maiden Tribute of Modern Babylon was probably as inaccurate and exaggerated as some more recent newspaper campaigns have been in the area of child sex. But the articles kick-started pressure to reform, so the age of consent was raised, while, with a certain illogicality, the minimum age of marriage for girls remained 12 until 1929.

And it's worth asking what the arguments might be for a change in this law.

There has been from time to time pressure to lower the age of consent, and the issue always turns on how you legally balance the young person's right to a sexual life (because something like a third of teenagers now "lose their virginity", as we still quaintly say, before the age of 16) against the young person's right to protection from abuse.

There was in the mid-1970s a major government inquiry initiated by Roy Jenkins on exactly this question, to which the now-notorious organisation, the Paedophile Information Exchange, submitted evidence.

That's how different things were in the 1970s - imagine an explicitly paedophile organisation having a public voice in parliamentary discussion in 2012. In the end, it was decided to leave the age as it was.

The Maiden Tribute of Modern Babylon

WT Stead's series in the Pall Mall Gazette described how children came to be sold for sex.

"Some are simply snared, trapped and outraged... after a prolonged struggle in a locked room, in which the weaker succumbs to sheer downright force.

"Others are regularly procured; bought at so much per head... or enticed under various promises into the fatal chamber from which they are never allowed to emerge until they have lost what woman ought to value more than life."

I suspect that I would have made that decision too. Not because there is anything magical about the age of 16, but because there is no way that the law can represent the complexities of this whole area. So changing it doesn't help things much.

This is a long way from that notice on the Cambridge train.

And I don't, for a minute, mean to trivialise the whole issue of sexual abuse of children by some cheap comparison with public transport. But there are some ways in which both give us a glimpse of just how contingent, or arbitrary, or historically determined laws that we take for granted can be.

At least that's what this old lady will be telling the ticket inspector next time she's picked up in the first-class compartment with a standard-class ticket.

Here is a selection of your comments.

More people would obey and be subject to the consequences of laws if - (a) Role models and our peers visibly demonstrated that they did the same, (b) "The law" itself was not proven over and over again to be "an ass". It's all about respect (that which is earned and not just blindly given) really.

Phil Davies, Birmingham, England

But what if government itself is bad? And comes up with bad laws? Surely one should challenge laws that are unjust, discriminatory, offensive or plain ineffective. As an example, the laws of my country state that I can never legally stop being a Muslim, can never marry anyone who isn't a Muslim, can never drink alcohol and can never eat in public during Ramadan (just to name a few). All of these "crimes" are punishable under my country's laws. Surely I shouldn't be expected to obey them?

Sheema, Kuala Lumpur

Interesting article, but carefully edges around the central issue of the difference in laws made by consent of the citizens, and laws made by a small elite for their own benefit. Britain is still a country in which class, privilege, and contempt for the unfortunate is a way of life. Laws can perhaps be challenged and changed, but only revolution with blood running in the gutters will erase the distasteful ingrained contempt and insolence of persons who believe themselves superior to the ordinary run of humankind.

John Barrett Rose, Vienna

Here in the USA, the state of Missouri a person can get married at age18, join the military at 18, but cannot drink alcohol until age 21. It has always seemed odd to me that a person can get married or die in the military for the USA, but cannot legally drink until 3 years later. The age of majority should be 18 for everything.

David Price, St Louis, Missouri

One point seems to me to have been missed. Where else is the criminal law used to enforce a purely private commercial arrangement? When the railways were in public ownership it was defensible - just - to regulate passenger use with penalties. But once the train companies took them over to run for profit, that state of affairs should have been ended. It is central to contract law - which is all that should now govern the right to travel - that breach leads to damages. Penalties are not permitted. Still less should any one party to a private agreement be able to call on the justice system to imprison and impose a criminal record on another. Anyone want to guess why the sanctions remain?

Iain M Spardagus, Hertford, UK

I find it interesting that in some areas we feel it important to observe the legal boundaries exactly, for example shoplifting even something small would be considered wrong, but in others, for example driving, the legal boundary is treated as flexible. I suspect that sometimes the arbitrary nature of laws such as the age of consent or the speed limit make them seem more flexible than the absolute prohibition on stealing. "I only stole a little" sounds less convincing than "I was only a fraction over", or "she was nearly 16".

Bill Domoney, UK

Anyone who has had to stand by the doors throughout a lengthy train journey in plain view of empty first class seating can be expected to wonder how it is that the train operator can take your money without any obligation to provide the expected standard of accomodation. It would be more honest to sell one ticket per seat on the train, possibly bringing back third class travel in the form of a standing room only ticket. At least then you would know what to expect, and receiving the service you had paid for would make it easier to respect the companies rules.

David Powell, Dudley, UK

One occasionally sees motorists in the media complaining about speed cameras. Speed cameras only matter if you're exceeding the speed limit. What those motorists are saying is: "I want to be able to break the law and get away with it."

Steve Kimberley, Cambridge

I teach PSHE to students in our International school. We are in Spain, so they conform to the Spanish limits even though they are British and we teach them the British limits. They are most confused about the range of ages they are considered responsible. Marry, but cannot have a mortgage or drive a car, which could be very inconvenient if you have kids. (But you can fly a plane!) Drinking, smoking, watching films, buying certain goods, dying for your country and voting. They think we (adults) are controlling hypocrites. It is about time we had one age at which we bestowed adulthood. They won't forgive us if we don't sort this out. I never have.

Patricia Duncan, Spain

Plato's view may well have been that "obedience to the law was the crucial contract a citizen made with the state", but at no time does any modern citizen make a contract with a state, for we are born into various societies with their laws, and if we break them - and are caught - then we are punished. But there is no contract involved, for there has never been any agreement entered into.

Little John, Boston, Lincs

Would you think it right to pay for a cheap bottle of wine at the checkout then go back into the store and swap it for a bottle of champagne? You are entitled to the product you pay for, in this case the type of seat you have on the train. Rather a different matter than the age of consent - which is arbitrary but how else can it be?

Steve Huddy, Bridgwater, England

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