For people who can't be bothered clicking through (or who did, and found it a massive and intimidating Wall Of Text) the tl;dr summary is as follows. There are two primary ways that law-makers think when making policy, Erl calls them Proclamation and Policy. They can be defined as follows:
- Proclamation:
Law made to represent the moral stance of society as a whole. Things that we disapprove of collectively are made illegal, to symbolise our objection to this sort of behaviour. It is usually more concerned with punitive response to wrongdoing than with flow-on effects or coherent strategies. Viewed through the lens of Policy law, Proclamation can look like a very blunt instrument, concerned more with slogans and soundbites than actual results. - Policy:
Law made in order to reduce the harm from specific behaviours, or to discourage behaviours considered harmful. It is usually made with a view to encouraging safe behaviour, or discouraging unsafe behaviour, rather than making a moral statement on behalf of society at large. Viewed through the lens of Proclamation law, Policy law can appear to be making inappropriate statements of right and wrong on matters that are actually legitimate personal choices (aka the "nanny-state").
Proclamation tends to be more popular at the conservative end of the political scale, and Policy at the more liberal end. Erl is at pains to point out that both approaches have their place, and that some laws (for example, the law against murder) can serve both purposes simultaneously. It's also important to remember that I'm paraphrasing here, and if you want the full essay you should brave the link (and possibly paste the text into a word-processor to make the page-width a bit more manageable).
Hard on the heels of that post (as if on cue) Winston Peters has made a dramatic re-entrance to New Zealand politics, proposing to cut the benefits of families who refuse to cooperate with police over child-abuse cases at the same time as repealing the "anti-smacking law" if NZ First is elected this year.
On the surface, this looks like nonsense. He's proposing to simultaneously "get tough on child abusers" while removing children's legal protection from assault, as long as the person who assaults them is their parent or legal guardian. However, it's a perfect demonstration in real-world local politics of exactly the way that the diverging mindsets of Policy and Proclamation work.
The "anti-smacking law" is classic Policy-type law. For one thing, the name "anti-smacking law" is a misnomer, invented by (arguably "Proclamationist") media to sell more papers. The law change didn't actually criminalise smacking your kids, as most people understand it. What it did was to remove the defense of "appropriate discipline" if you got charged with assault as a result of smacking your kids. The distinction is important, because most people who smack their kids don't end up in court being charged with assault as a result. Generally speaking, something has to be pretty horribly wrong before that happens.
The law-change was less about making a "statement" that New Zealand was anti-smacking, though it was (somewhat unhelpfully) portrayed as such, and more an attempt to fix the fact that people were turning up in court having done awful things to their children, and getting off on the grounds that what they had done was done in the name of discipline. It's not a statement of public morality, rather an attempt to tune existing law to make it do what it was initially supposed to do more effectively - Policy law.
However, viewed from the standpoint of Mr. Peters and his supporters (which I would argue is generally conservative and "Proclamationist") this would constitute "social engineering" and governmental meddling in the fundamentally private sphere of family life, and a parent's right to govern that family as they see fit.
However, viewed from the standpoint of Mr. Peters and his supporters (which I would argue is generally conservative and "Proclamationist") this would constitute "social engineering" and governmental meddling in the fundamentally private sphere of family life, and a parent's right to govern that family as they see fit.
As for the second part of his proposal, once we've established that Mr. Peters approaches contentious public issues largely from the perspective of Proclamation-making, that's easy enough to understand. The first factor is that it's punitive. It's not interested in figuring out what contributes to child abuse, or reducing any of those factors once they're established. It's a plan to Smite Evil People.
The second factor (and I think, the most telling) is the specific tactics and circumstances mentioned in his plan - cutting off the benefits of people who fail to help the police in child abuse cases. That's a direct reference to a specific set of circumstances that happened in new Zealand recently, and caused significant public anger, not an attempt to address child abuse more generally. It also neatly includes a "people on benefits are evil child abusers" subtext, as it's not clear what Winston Peters intends to happen to people who are fully employed and refuse to cooperate with the police.
Of course, explaining why a statement makes sense to the person who made it doesn't actually mean that it does make sense in terms of the real world. So, what are the likely real world effects of Mr. Peters' proposals?
Well, that's where they seem to fall to bits, unfortunately. Let's look at the first part - the benefit cutting. If the dramatic increase in domestic violence after the Christchurch earthquake and the correlation of spikes in family violence statistics with Christmas and major sporting events is anything to go by, people who behave violently towards their families seem to be people who don't deal well with stress or intense emotions, and who terrorise their families at least in part as a way of spreading negative emotions around to "share the load". I would also assume that families being asked to cooperate with the police around a case of child abuse are by definition at risk of further domestic violence.
So what Winston Peters is proposing is to directly target people who respond to stress by attacking the people close to them, and place them under further stress by significantly reducing or completely eliminating their income. This does not seem like a good idea to me. Let's be clear, I'm not in any way attempting to justify the behaviour of domestically abusive people or to claim that they're not responsible for their own actions. However, getting abused people away from the abuser is not as easy as it might seem on the surface, and people stuck in these situations are going to be far worse affected by this kind of measure than the person who's doing the beating.
As for the second proposal - reinstating "necessary discipline" as a defense to a charge of assaulting a child - I don't think it bodes well either. For one thing, it'd mean some abusive parents being able to legally justify their actions if caught, but there's another angle to it as well. Because Winston Peters habitually speaks from a Proclamatory viewpoint, this move needs to be viewed in that way - in terms of the message he wants it to send. The message in this case, is that "good" child-smacking is OK.
The problem here is that "good" child-smacking (as opposed to child abuse or assault) is not clearly defined. Humans are creatures of habit, and habits are subject to drift. What happens if a person who is in the habit of physically disciplining their child loses their job and begins to drink heavily? Or becomes addicted to another drug, particularly one that correlates strongly with aggression? I suspect that what happens is that the habit persists, but the level of control and perspective becomes skewed - the parent starts to hit harder and with less provocation. As with a growing substance problem, I can see how the person in an example like this could fail to see their behaviour as problematic until it became extreme.
In summary, I think Winston Peters' recent announcements are probably not just a populist power-grab. I suspect he probably does view law in terms of Proclamation, and genuinely feels that sending messages is an important thing to do. That said, I don't believe that changes the fact that his proposals are at best short-sighted, and at worst disastrously irresponsible.
Well, that's where they seem to fall to bits, unfortunately. Let's look at the first part - the benefit cutting. If the dramatic increase in domestic violence after the Christchurch earthquake and the correlation of spikes in family violence statistics with Christmas and major sporting events is anything to go by, people who behave violently towards their families seem to be people who don't deal well with stress or intense emotions, and who terrorise their families at least in part as a way of spreading negative emotions around to "share the load". I would also assume that families being asked to cooperate with the police around a case of child abuse are by definition at risk of further domestic violence.
So what Winston Peters is proposing is to directly target people who respond to stress by attacking the people close to them, and place them under further stress by significantly reducing or completely eliminating their income. This does not seem like a good idea to me. Let's be clear, I'm not in any way attempting to justify the behaviour of domestically abusive people or to claim that they're not responsible for their own actions. However, getting abused people away from the abuser is not as easy as it might seem on the surface, and people stuck in these situations are going to be far worse affected by this kind of measure than the person who's doing the beating.
As for the second proposal - reinstating "necessary discipline" as a defense to a charge of assaulting a child - I don't think it bodes well either. For one thing, it'd mean some abusive parents being able to legally justify their actions if caught, but there's another angle to it as well. Because Winston Peters habitually speaks from a Proclamatory viewpoint, this move needs to be viewed in that way - in terms of the message he wants it to send. The message in this case, is that "good" child-smacking is OK.
The problem here is that "good" child-smacking (as opposed to child abuse or assault) is not clearly defined. Humans are creatures of habit, and habits are subject to drift. What happens if a person who is in the habit of physically disciplining their child loses their job and begins to drink heavily? Or becomes addicted to another drug, particularly one that correlates strongly with aggression? I suspect that what happens is that the habit persists, but the level of control and perspective becomes skewed - the parent starts to hit harder and with less provocation. As with a growing substance problem, I can see how the person in an example like this could fail to see their behaviour as problematic until it became extreme.
In summary, I think Winston Peters' recent announcements are probably not just a populist power-grab. I suspect he probably does view law in terms of Proclamation, and genuinely feels that sending messages is an important thing to do. That said, I don't believe that changes the fact that his proposals are at best short-sighted, and at worst disastrously irresponsible.
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