A Vague Disquiet about Inflicting Punishment

Britain is run by terribly nice people. And it is easy to be terribly nice if one lives in one of the many parts of the country that are themselves terribly nice. Contrary to how things might appear in overseas media these days, there are vast swathes of this country which remain exceptionally pleasant. Crime is low; neighbourhoods are peaceful and well maintained; there is greenery everywhere; there is a decent dog-friendly cafe, dog-friendly microbrewery or dog-friendly dog grooming parlour on every street corner; the dads of the kids at the local schools all do pick-up and all have opinions about cycling and the best low-alcohol beer; people are prosperous, polite and earnest about correctly disposing of food waste.

If one comes from a detached home in such a place, then it becomes easy to forget about the existence of good and evil. One only ever encounters people who have the right type of good manners as dictated by the fashions of our current moment – a sort of blancmange of flavourless concerns (climate change, Nigel Farage, Russia, Donald Trump, the gender pay gap, the manosphere) which is what passes for public morality in 2026. Since that morality is almost substance-free, it is as easy to adopt as putting on a new set of clothes, and one therefore comes to think of all morality as being essentially like that – an off-the-peg suit of bland beliefs that one just wears in order to resemble a good person. One forgets (if one ever knew it to begin with) that there are such things as right and wrong, that the choice of whether to do the right or wrong thing in a given situation (rather than the choice of what suit of beliefs to wear) is where morality lies, and that there are people who will consistently choose to do the wrong thing if they are not punished or deterred from doing so by the threat of punishment.

Because the country is run by the type of person who thinks that morality is just like a suit to be worn, we have a structural and systemic blindspot: we are incapable of thinking seriously and clearly about law. Since morality is just a matter of what suit is worn, we imagine the thing to do is just to make sure everybody wears the same one. We could, we surmise, all just learn to be terribly nice, and all would be well. Everybody is terribly nice in the milieu within which our governing class marinates. So they imagine terrible niceness can be simply extended ever outwards, through that soft and spongy form of quasi-evangelism that one encounters everywhere nowadays – a cloying, insistent nagging to the effect that everybody should just be kind and inclusive and celebrate diversity – as though our national destiny is to turn into a country entirely made up of CBeebies presenters: capering, simpering, inane.

This all leads us to eschew law, the essence of which is making rules and enforcing them. Why, our governing class wonders, would one need as archaic and quaint a thing as rules, with consequences for breaking them, if one could just make sure everybody is nice? It is true that we are, as I have explained before, very good at creating judicial and regulatory processes which call themselves law. But these are in truth only exercises in creating discretionary powers for the executive to exercise, or judicial processes giving legal effect to what the judge had for breakfast. The idea that there is a right and a wrong, that public law ought to reflect this, and that consistent, significant consequences ought to flow from its breach, is a concept which is becoming increasingly alien to us.

British readers will be familiar with a recent news story which captures this problem and its results rather neatly, if depressingly. In the early hours of August 22nd a car driven by five youths was involved in a police chase near the town of Middlesbrough; at a certain point the car ended up going the wrong way down a dual carriageway and collided with a police armed response vehicle. All five of the joyriders were killed, and so were the two police officers in the other car.

Reading the thumbnail descriptions of those who died, one cannot help but be struck by the extremes of masculine virtue and vice on display. One the one hand, there are PC Matthew Blades and PC Tom Clough, two men who were killed while protecting the public. Blades was a married father of two sons who coached youth football teams in his spare time; Clough was a former serviceman who had fought overseas. The latter was described by loved ones as “willing to help anyone for any reason”; the former as a “beloved husband” and “devoted father”. It is hard not to get a lump in one’s throat reading the eloquent words of Blades’s widow, who said of him that while he gave his life in the line of duty, “his greatest legacy will always be the love he gave to his family”.

The information the public have been provided about the young joyriders who were killed, on the other hand, reads like a stereotypical litany of what used to be called juvenile delinquency. Here is what the BBC said of them:

Four of the five killed had previous convictions, including for assaulting police officers, Cleveland Police revealed.

Cole Worthy, 17, had admitted offences including assault of a police officer, using abusive language to cause harassment, alarm and distress, and driving without a licence and insurance.

Makai Saddington, 18, had also been convicted of assaulting police officers, had pleaded guilty to racially aggravated harassment, and was caught with a knife and a class C drug.

Seventeen year-old Theo Rae’s offences included 12 for shoplifting, thefts from vehicles, assaulting a police officer and aggravated vehicle taking.

Jakub Matusiak, 23, had pleaded guilty to using a vehicle without insurance and driving without a licence.

Michael Robert Cahill, 23, had no convictions.

But this plays things down: we now learn that between them, Worthy, Saddington, Rae and Matusiak had racked up 37 convictions by June 2026. Bearing in mind that while Matusiak was the eldest, at 23, he had only apparently been convicted twice, that means Worthy, Saddington and Rae – only one of whom was yet 18 years old – had collectively amassed 35 prior convictions by the date on which they died. Some of these were petty (“using abusive language to cause harassment, alarm and distress” – I mean, really). But assaulting a police officer is not.

The story is a ‘live’ one as the crash has lead to further police raids and arrests, and appears to be connected to a spate of violence in the local criminal underworld. There is a lot about the event that remains mysterious. But at its heart there is a brutal simplicity: Blades and Clough would very likely be alive today if repetitive criminal offending resulted in lengthy prison sentences in England and Wales. But repetitive criminal offending does not generally result in lengthy prison sentences in England and Wales. It often barely results in any sentencing at all.

The examples and illustrations are legion. The woman convicted 171 times for shoplifting; the teenager who escaped a custodial sentence after killing a nine year-old girl with a knife; the child abusers given ludicrously short probation orders; the serial sex offender given serially lenient treatment until his murderous actions finally forced the judicial system to take proper action; the Albanian drug dealer given a suspended sentence because he now has a job and is “willing to put back into society“; the thug with an existing suspended sentence spared jail after further violent conduct because it would not have been “just” to imprison him; and so on.

No doubt criminals are still given custodial sentences and unduly lenient sentences are reviewed. But the pattern is evident to anybody who keeps an eye on such matters: crime does not go entirely unpunished, but sometime it feels as though it is getting there. And it also increasingly feels as though the only exceptions are those crimes which are suggestive that the criminal was recalcitrant about wearing the correct suit of beliefs; the impression that has been allowed to gain currency is that it is only in such circumstances when the force of the law is deployed with any severity.

What explains this? It was all foreseen long ago. In Rebecca West’s 1947 book The Meaning of Treason, we find a fascinating passage on the topic of punishment. West is not a fashionable writer – she was too anti-communist to appeal to the intelligentsia in the second half of the 20th century and is nowadays little-discussed – but she was a great (if frustrating) one. And she had a great writer’s gift for stating important truths. The book is in the main about the trial and life of William Joyce, known universally as Lord Haw-Haw, and his eventual execution for treason. But West takes the opportunity along the way to summarise almost all of the jurisprudential developments of the preceding three thousand years in a few sentences – and to predict, with great accuracy, where our thinking about law would lead us.

Joyce was an Irish-American fascist who became famous as the voice of pro-Nazi propaganda broadcast from Germany to Britain during the Second World War on the programme Germany Calling. At the end of the war he was tried and convicted in Britain for treason – the last person to indeed be tried for that offence – and was duly hanged. But the circumstances were somewhat unusual, as he had not been a British citizen at the time the purported offence was committed (the meaning of “treason” had to be strained somewhat in order to convict him). And West tells us that there was a degree of sympathy for him in the intelligentsia, and in particular among lawyers, in the days his trial was in the news.

This sympathy was not borne out of sympathy for his cause, of course, but rather sympathy with his plight. Joyce, these people thought, was “a vile man”. But they wanted to congratulate themselves on being “gentle and unrevengeful”. Although personally far too rational, at least as they saw it, to believe in God, they lived in the “New Testament world”, in which “justice has been blow upon by mercy”; they had inherited an idea that forgiveness was important. As West nicely puts it, summarising one of the strange hypocrisies of our age and hers:

This reluctance [to punish Joyce] has now forgotten its cause, since we are no longer Christian. Hence it remains as a vague disquiet about inflicting punishment.

West had no qualms telling it like it was. “William Joyce was not a vile man,” she said, having surveyed his life, “but he still should have been hanged.” And she was contemptuous of the views of her peers, which she said were not really about mercy or “sweetness” at all, but rather an outgrowth of “sourness”. These people may have wished to present themselves as merciful, but really they were filled with “dishonourable intent”. And that intent was obvious once the niceties were all stripped away. What they wanted was not really to exercise mercy, but to be “assured that life was moral nonsense”. What they wanted was to escape judgement themselves. If, in other words, law has no connection to right or wrong, and if one can commit the worst crime of all, the crime of treason, and be allowed by the law to get away with it, then that is tantamount to saying that all courses of action are open to everyone. If treason doesn’t really matter, and should not be properly punished, then that goes for everything.

And everyone, at a selfish level, benefits from that. To extend West’s thinking, if there ought to be no punishment for Lord Haw-Haw’s treason then there ought to be no punishment for you, John Smith, for doing a little middle-class shoplifting at the self check-out tills at Waitrose; there ought to be no punishment for you, Helen Roberts, spending all the WFH day baking and watching YouTube videos while pocketing your nice civil service salary; there ought to be no punishment for you, William McPherson, blackmailing underage girls to send you nude photos on Snapchat. The idea that the law should not be connected to right and wrong, and that it is all just a lot of arbitrary rules that we can set to one side when it suits us, serves the interests of everyone if all they focus on is their own short-term horizons.

The desire to appear “gentle and unrevengeful” was really in other words a desire to cleave law from morality entirely and relax standards everywhere and for everyone. It was a desire to inhabit a moral abyss, in which behaviour would not have serious consequences, and all would be free from the cruelty of judgement. Law in such an abyss would still exist – nobody likes anarchy – but when it came to the public law, and especially criminal law, it would exercise kind, benevolent passivity and its main principle would be mercy. And that mercy would apply to all of us.

What is so damaging about this “dishonourable intent”, as West rightly identified, is that it is cloaked in a veneer of pseudo-rationality (of which, again, lawyers were especially guilty). Why, these kind and decent people seemed to think, was it necessary to hang Joyce at all? What would it achieve? Wasn’t that all a rather barbaric and uncivilised way to deal with somebody who, in the end, was a trivial and harmless figure?

There was therefore a peculiar tension at the heart of West’s contemporaries’ response to Joyce’s predicament: on the one hand it was felt that law ought to give effect to the dictates of that most irrational and emotional of phenomena – mercy. But on the other there was the feeling that law ought to be rational, and not mysterious or reflective of knee-jerk emotionalism. In this view it was both irrational, and inadequately reflective of the irrationality of mercy, to hang a man for treason when it was dubious whether his actions could be described in that way, and when hanging was itself an act of unnecessary cruelty. These people were irrationally rational: they wanted so very much to be nice, but dressed up their niceness in a fake, self-serving form of reason that presented it as simply an exercise in logic.

West did not talk in the language of jurisprudence, but she knew a thing or two about the history of thinking about law. One could design an entire undergraduate course on jurisprudence using a single short section taken from this wider section of The Meaning of Treason, which goes as follows:

Demosthenes said that every rule of law was a discovery and a gift of the gods, and he added that it was also an opinion of sensible men. Nine hundred years later the great Justinian prefixed that same definition to his Digest of Laws, only changing ‘gods’ to ‘God’. This seems a paradox, for assuredly men are not gods, and the last thing a god or God could fairly be compared with is a sensible man. Yet Pagan and Christian alike realised that the law should be at once the recognition of an eternal truth and the solution by a community of one of its temporal problems; for both conceived that the divine will was mirrored in nature, which man could study by the use of his reason. This is the faith that has kept jurisprudence an honest and potent exercise throughout the ages. …

The Englishmen who thought that Joyce should not have been hanged had wholly lost this conception of the law. They do not believe in the divine will; nor do they believe in the service of humanity, the rights of the state, the sovereignty of intelligence or moral sense, to the extent of imposing penalties for treachery to the sought social end; which means they do not believe in it at all. They wish the law to be purely arbitrary: a transparent chessboard laid over life in which a game is played, as an addition to its hazards, and even as a disguise for its real hazards.

What West is describing here, to cut a long story short, is a potted history of jurisprudence in Europe. She is laying out the end state of the transition away from a faith in natural law – the idea that law could and should be both “recognition of an eternal truth” and “the solution by a community of one of its temporal problems” achieved through studying nature – and towards an idea that law was something merely ‘posited’ by the sovereign as it saw fit.

The latter of these ideas, legal positivism, comes in its modern form from Hobbes, who categorically denied that the authority of law derived from its consonance with nature or the divine will. But it has come down to us through a long line of his inheritors – Bentham, Austin, Kelsen, Hart, Raz – who have gradually opened up a vista on a future in which law is indeed “purely arbitrary”, defined simply as emanations of sovereign will, and achieving whatever purposes the state has in mind. Here law has no connection at all to any “eternal truth” or natural right studied through reason, but is simply a tool – something which is wielded by the sovereign to achieve desired outcomes. Those desired outcomes might be themselves good or bad, right or wrong, but law is still law regardless, and its authenticity as such has no connection to underlying morality at all.

As West well understood, legal positivism can only really be understood as a kind of legal nihilism. If law is merely what the sovereign says is law, if it simply achieves whatever the sovereign wants it to achieve, and if it need have no necessary connection to any underlying morality, then the sovereign can make any law that it likes. And this is indeed the criticism that tends to be made of the positivist position – that it connects law to command, and therefore serves as justification for an ever-proliferating legal authoritarianism that only ever cements state control.

But if the sovereign can make any law that it likes, without concern for underlying “eternal truth”, it might of course just as well say, ‘anything goes’. What is lawful today might be made unlawful tomorrow, and then back again the next day. And equally, what is unlawful today may be made lawful tomorrow – in fact if not in principle. That certainly appears to be what has happened in respect of ‘minor’ crimes such as shoplifting or possession of cannabis, which are basically treated as lawful whatever the statutes might say. And it also seems to be what happens in respect of crimes committed by juvenile delinquents in Middlesbrough, as recent events have shown.

To deny that law should have any connection to eternal truth and that our temporal problems can be resolved by reasoning through that connection is, in other words, to deny law’s connection to morality. And this is in effect to say that morality does not mean a great deal at all. What matters is expediency. And since it is jolly expedient not to bother enforcing minor offences, then why enforce them? Crimes like shoplifting, possession of drugs, assaulting police officers, aggravated vehicle taking and so on can be tolerably managed provided they do not spread too far outside of the areas of the country, like Middlesbrough, where the great unwashed tend to live. And, really, what’s so terrible about those things in the first place? Isn’t it awfully irrational, and counter-productive – not to mention judgemental – to insist that such activities are always and everywhere wrong, and that people should be punished for doing them? Wouldn’t it be better if we just encouraged the likes of Theo Rae and Makai Saddington to be terribly nice instead?

The widespread abandonment of punishment is, then, where legal positivism – the idea that law’s authority and authenticity have no connection to natural right and wrong – has ended up, because it is one of the directions in which the instrumentalisation of law can go. If law is just an instrument, then it need only be deployed where necessary in some sense. And if it is deemed not to be necessary to punish certain categories of crime, then there is no reason why the law should do so. It is not necessary to punish petty criminals in a town like Middlesbrough, both because it does not affect people in terribly nice places, and because it serves the need of people living in those terribly nice places to be “assured” that “life is moral nonsense”. And so petty criminals are duly unpunished; what argument exists in the positivist universe to suggest things should be otherwise?

The complaint that liberals do not understand matters of crime and punishment is of ancient heritage, and all that conservatives have ever been able to do is make their case in the knowledge that the lessons learned are always going to be learned too late. The baser aspects of human nature always win through, and it is just easier for everybody, as West understood, to go down the route of “moral nonsense” to legal positivism’s end state: a game that is played “as a disguise for [life’s] real hazards” without anything in particular to say about matters of right and wrong at all. It just has to be hoped that eventually, as conditions deteriorate, the opposite message will sink in. In this connection, as a coda to these thoughts, I was interested to read the comments of the former Mayor of Middlesbrough, a man called Andy Preston, on the recent violence in the town. In light of what I have just written, they will sound familiar:

What we’re seeing now is the product of years of being soft. Years of being desensitised.

When you have idiots – disorganised groups that are called organised crime – shooting other people’s [and] rivals’ front doors, when you see them burning out cars, when they seem untouchable, everybody becomes actually desensitised to it.

Years of being soft; years of being desensitised. These are the results of the idea having set in that life is “moral nonsense”, and that punishing wrongful conduct is not the point of the criminal law. And the results, as what is happening in Middlesborough currently shows us, are depressingly plain.

Eighty years ago, when West was writing, we still seem to have had enough good sense to know that there are things which are wrong and that people who do those things must be adequately punished by the law, wherever they live and whatever their background. Joyce deserved to be hanged, and was, despite the “vague disquiet” about it. But somewhere along the line that good sense has been lost, and the “gentle and unrevengeful” of this world have had their way. We now live in West’s future, and are, one suspects, going to have to rediscover the clarity of thought which her generation had the hard way. To quote our man Preston a little further:

Almost everyone is angry about what’s happening to our town and our country. Criminals and layabouts seem to do that they want, often without consequences.

Decent people see death threats, guns shot at front doors and cars rammed into houses. The escalation of menace and intimidation here is huge. Criminals dominate some streets and communities. It’s horrendous.

Middlesbrough is England’s crime capital. That didn’t happen overnight. We’ve allowed bad behaviour to go unpunished, worklessness to become normal and criminals to think they can do pretty much what they like.

At some point enough will be enough and a particular “eternal truth” – bad deeds must not go unpunished – will reassert itself. But that point seems like a long way off in Britain in 2026.

Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.