A friend and mentor of mine, the late Aaron Russo, used to open some of his talks with a question: How can you know whether or not you live in a police state?
Aaron had a theory on the subject, or rather a method for answering the question:
Imagine yourself, he said, driving down the road. Not fast, not recklessly, just driving down the road as any normal person would drive to get from Point A to Point B.
Now, Russo said, imagine that as you pass an intersection, you look in the rearview mirror and see that a police car has turned onto the street behind you. The police officer isn’t running his siren and passing you on the way to the scene of some crime. He’s just settling in behind you, driving at the same speed as you… tailing you.
Are you comforted by the knowledge that the police are out on patrol, fighting crime? Or do you start to worry—do you get that tight feeling down in your gut, expecting to be pulled over at any moment for some offense that you don’t—probably can’t—know you’ve committed?
The latter reaction, Russo said, is a sign that you’re living in a police state: A society in which you and everyone around you are subject to the arbitrary whims, and expected to obey the every command, of “law enforcement personnel.”
Your humble Devil has often been mocked for his assertion that we are, increasingly, living in a police state, but I think that the above idea is worth thinking about. The root of the problem is "preventative" laws—laws that penalise you because you might do something.
I have said before that I think that all criminal law could actually be distilled into one single law: "It is illegal to initiate force or fraud against another person's life, liberty or property."
To take the example of driving a car, if you break the speed limit (or drink and drive), you have not actually harmed another human being—your punishment is based on a law that argues that you might have an increased risk of harming a human being.
(Such laws are not even consistent: driving whilst tired can be just as dangerous as being over the drink-drive limit (which is ridiculously low), for instance, as the BBC have recently highlighted—and yet there is no law against that.)
Laws that criminalise people for what they might do are incredibly dangerous, not only because they put one's behaviour at the whim of law enforcement officers (not everyone is who speeds is caught, for instance) but also because it is difficult to justify ever stopping at any point.
Should we, for instance, criminalise those who drive whilst tired? If we go to the reductio ad absurdum, will we one day criminalise all men because of the probability that they might rape someone? Or might murder someone?
You can argue that this is a stupid argument (well, I warned you) but can you point to a moral reason why we should not do so? After all, we have no proof that the majority of men do not rape women, do we?
With my simplified law, it is very simple: one can say that the law gets involved at the point at which actual harm has been done* and not before: there is a natural stopping point. When penalising people for what they might do, there is no such point.
It is this attitude that it is right and proper to criminalise people on the basis of probabilities—coupled with the idea of the state as an entity that can be sinned against—that has led to the worst excesses of illiberal legislation over the last few decades or so.
And it is why we are slipping into a police state (assuming that we are not already there, of course—an assumption that your humble Devil is unwilling to make): because once one has passed the natural stopping point—once that taboo has been breached—there is no moral reason why on earth one should stop.
There may, indeed, be practical reasons why one should stop, but our government has seemed willing to test those limits to destruction—especially since much of that practicality is based on our right to live in freedom.
But, because this stopping point has been broached, the laws under which we live are no longer concerned with individual freedom: they are concerned only with probabilities. To take an example, what does it matter that you imprison, for weeks or months without charge, ten, twenty or a hundred individuals as long as you decrease the probability of a large crime?
What does it matter that you criminalise, for speeding, ten, twenty, or a hundred individuals as long as you decrease the probability of another death?
In other words, the absolute right of the individual has been subsumed into the probability rights of society. Someone might be killed if you go faster than such-and-such arbitrary speed and, in the society in which we currently live, this alone is sufficient justification to take away your individual freedom.
As a libertarian, I view this trend for punishing on the basis of probabilities as being completely wrong: by definition, these laws destroy the right of the individual to go about their life unmolested as long as they harm no one else.
As I have said, we do not need the thousands of laws that have been made: all we need is one law—you shall not initiate force or fraud against another person's life, liberty or property.
* We can, of course, argue about definitions of harm, e.g. mental bullying, etc., but it is not really relevant here.