photo by Lane Turner / Boston Globe

The recent riots in England caused me to muse on the role of the criminal law in protecting society itself.

If I asked whether you thought that, historically, taking out a man’s two front teeth was the crime of mayhem (maim), then I asked you the same question about cutting off a man’s ear, other than as necessary medical treatment, most of you would guess that the former was not maim and the latter probably was. In fact, the correct answers are exactly the opposite.

Here’s the reason. It’s only in recent times that a primary goal of the criminal law has been to protect individuals for their own sakes. Rather, it protected them in order to maintain the King’s army to defend the realm, that is, it protected individuals primarily to protect society. Interfering with their ability to do so was a crime, a wrong to the society. Taking out a man’s two front teeth made him unable to fight, because he could no longer “bite the bullet” – open his flask of lead shot with his teeth and load his musket – and was, therefore, the crime of maim. Cutting off his ear did not affect his ability to fight and, consequently, was not that crime.

Protection of society is still a major focus of the criminal law. For instance, the editorial board of the Globe and Mail in Toronto recently argued for a life sentence for kidnapper and rapist, Romeo Cormier, on the grounds that a judge should “consider the safety not only of the community today, but of the community tomorrow”. The editors continued, “The damage done to the community by stranger-abductions is incalculable. Today’s generation of children, for instance, do not play outdoors on their own, because of fear of abduction.”

The ancient crimes of unlawful assembly and rioting that occurred in the English events are interesting for at least three reasons: They cannot be committed alone; rather, they require more than two people in order to be perpetrated. They can involve actions that if done alone would be legal, but done with others are illegal. And they are meant to prevent collective conduct that threatens society, itself.

In a Canadian context, these crimes are enacted in articles 63 to 67 of the Criminal Code.

Section 63 provides: “An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they … will disturb the peace tumultuously;…”.  

And section 64: A riot is an unlawful assembly that has begun to disturb the peace tumultuously.”

Causing tumult is obviously central in establishing the commission of these crimes. The Oxford English Dictionary defines tumultuously as includingwith … commotion; with confusion and uproar; … seditiously.” These are crimes meant to keep the peace and to protect communities and society.

Moreover, quite apart from the law, we need to recognize that it is not always ethically acceptable, from the point of view of not harming society, to do everything that we are legally allowed to do. So where and how should we draw the necessary lines?

This line of thought led me to muse about the cumulative effects, in terms of harm to society, of some things we are currently doing that individuals have a right to do, or at least are not prohibited from doing, usually pursuant to respect for their rights to autonomy and self-determination.

In analyzing these situations, I suggest we should ask, first, whether they manifest “intense individualism”, that is, respecting individuals’ decisions, without taking into account the cumulative effects of these decisions on society, both in the present and the future. Second, would any of these cumulative effects be harmful? And, third, what might be current situations where society needs to be protected from actions that are lawful for an individual, but cumulatively would threaten society?

For instance, what would be the effect on the value of respect for human life, in general, and for each individual life of legalizing physician-assisted suicide, as is being proposed in current court cases in British Columbia? What would be the impacts on the institution of medicine and on healthcare professionals? Would it lead to widespread elder abuse, failure to respect disabled or other vulnerable people, or moral callousness?

What about individuals “choosing” their children through prenatal testing and abortion? A baby’s sex can be established at seven weeks of pregnancy. Should sex selection be prohibited in the interests of society? In India and China sex selection has resulted in many millions of missing girls. Quite apart from the wrong to those girls and the failure of respect for life entailed, many young men in these countries cannot find a wife and abuse of women is augmented.

Same-sex marriage also raises the issue of whether what might be good for an individual can be bad for society, as a whole. Same-sex marriage benefits same-sex couples, but abrogates children’s rights to a mother and a father, their right to be reared within their natural biological family, and it disconnects them from at least one of their own biological parents. Divorce and intentional single-parenthood do likewise, in practice, although not in theory, because, unlike same-sex marriage, they do not alter the definition of marriage and, therefore, do not affect the rights of children established by opposite-sex marriage. 

As legalized societal institutions, both same-sex marriage and divorce undermine the societal value of respect for the natural family. This loss has been targeted as a cause in the English riots on the grounds that many of the boys who rioted and looted were fatherless with no appropriate male role models and, as a result, undisciplined and lacking self-discipline.

In addressing the causes of the English riots, the Chief Rabbi of the United Kingdom asked a question that provides an essential insight in regard to what is needed, in the interests of protecting society, with respect to the values that we are transmitting to subsequent generations. He asked: “Where was the internalised self restraint that says, “There are certain things you just don’t do, because if you do, we will all suffer?”” We all need to try to answer this question honestly and to act courageously on the basis of our response, even if it means sacrificing our own personal preferences.

The cause of the riots was not the absence of criminal law and, I propose, prevention of similar incidents in the future cannot be realized through the passage and application of sterner law. What is required is much more complex and far from clear-cut or certain, except that it is likely to require some self-sacrifice on all our parts as both individuals and societies; considering more carefully the values we want to pass on to our children and future generations and, at least as importantly, those we do not want to pass on; and, in both our own lives and our collective life as a society, honouring those values we want respected and eschewing those we wish to be abandoned.

Margaret Somerville is director of the McGill Centre for Medicine, Ethics and Law in Montreal.

Margaret Somerville AM, DSG, FRSC, DCL is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor...