Because humans are emotional beings, we need laws drafted in accordance with principles, rather than out of specific moods.
Currently, it is common practice for parliaments to pass laws after adverse events, and these laws are often tailored to deal specifically with the recurrence of such events. Subsequently, they curtail the personal freedom of a vast number of people, even when the probability of a similar adverse event is very small.
The chain of events typically runs like this:
1. There is an adverse event (a crime or a catastrophe).
2. The tabloid media and television cover it, with a particular focus on stirring up emotions among the general population.
3. Politicians discover it as a topic to obtain front-page or prime-time media coverage, which is essential if they want to get elected.
4. Stringent new laws are passed, dealing with precisely this topic.
This is poor practice. Essentially, it means that the tabloid media and television have enormous leverage over the laws passed in a country.
It is poor practice because these new laws are usually not in proportion to the penalties prescribed in a country's general penal code.
Typically, these new special laws stipulate much stricter punishments, and sometimes they even conflict with older general laws. Proportionality is an important aspect of a legal system, but it is usually abandoned with ad hoc legislation following adverse events.
Many penal codes around the world specify that the penalty for rape followed by murder is the death penalty. If the victim is not murdered, the prescribed punishment is considerably lighter.
If a criminal code is supposed to serve as a deterrent, the above makes sense, because a rapist might spare the victim's life just to avoid the risk of being put to death if caught.
If, after a child rape case, new laws are passed that:
1. define any sexual contact with a person under 18 as statutory rape, even if no violence is involved,
and
2. mandate that all rape of minors is punishable by death, then sooner or later, victims of rape or statutory rape could be murdered simply because perpetrators know they face capital punishment anyway, regardless of whether they murder their victims or leave them alive.
In the heated, emotional climate created by the tabloid media after sex crimes, no lawmaker will stand up and ask for more lenient treatment for rapists who spare their victims' lives, as the media would brand such an outspoken politician a supporter of rapists. The more emotionally driven the electorate, the fewer politicians one will find who dare to speak in favor of proportionality.
In some countries, simple murder carries a 12-year sentence, but selling 100 grams of marijuana carries the death penalty. Rape of a 19-year-old might carry a 10-year sentence, whereas a statutory offense involving a consenting 17-year-old can carry a lengthy prison term, and if the consenting partner is under 14, it can result in decades in prison or even life imprisonment.
In the US, corporate fraud can result in executives receiving prison terms of 100 years or more, and truth-in-sentencing laws ensure that such terms are not automatically reduced to manageable time spans that offer hope of release, even though only money was involved and no violence occurred.
Furthermore, it was a longstanding principle of the justice systems in Western civilized countries that laws are valid only for the territory over which a country and its lawmakers have jurisdiction. In the 1960s and 1970s, people criticized laws in countries like Libya, which stipulated that Libyan laws apply to Libyans in other countries, even after they renounced their Libyan citizenship.
Meanwhile, however, conservative Christian fundamentalists and conservative feminists have succeeded in pushing extraterritorial laws through the US Congress as well. If American citizens or residents engage in sexual conduct with a 17-year-old partner in another country where the act does not violate local laws, they can still be prosecuted in the US. They will face prosecution for acts committed while they held citizenship or residency.
The agenda of conservative feminists is possibly rooted in retributive justice, while the agenda of conservative Christian fundamentalists is simply to restrict sexual behavior wherever possible. They are often not primarily concerned with maintaining a sensible justice system.
For the benefit of a sensible, proportional justice system, lawmakers should be restricted by a country's constitution from passing special criminal laws. Instead, they should be required to integrate new ideas for criminal prosecution into existing penal codes. There should be proportionality stipulations in a country’s constitution, and a Supreme Court should be compelled to ensure that newly passed legislation is consistent with those stipulations regarding the proportionality of punishments.
To enhance the requirement for a proportionate system of legal penalties, a header paragraph for each group of crimes (crimes against public order, crimes against property, crimes against people) should specify a range of possible punishments, and the prescribed penalties for all further paragraphs dealing with crimes in that particular category would have to stay within this range.
Only a legal system guided by principles of proportionality benefits the people, not one guided by the emotions stirred up by the tabloid media on topics that help the press sell more copies and television stations sell more ads.
There are also shortcomings in the democratic form of government, which forces politicians to remain popular with a large number of uninformed or easily manipulated voters.
The best chance for an enlightened legal system might be found in a country governed by an elite-led party with a science-based ideology that emphasizes personal freedom as well as a proportional legal system, maintaining both in as safe an environment as possible. Ultimately, personal freedom and a proportional legal system depend much more on the character of those who rule than on the method by which they came to power.