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?

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.

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.

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.

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.

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. 

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.

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.