Shame Is a Game Worth Playing

26/06/2012 16:27 BST | Updated 26/08/2012 10:12 BST

Some things are illegal. Some things are immoral. There is sometimes a difference between the two. But that doesn't mean that politicians and commentators should restrict themselves to comment on the former and leave the latter wholly to personal judgement. Or that they should always seek to transform the immoral into the illegal at the earliest possible opportunity. On a myriad of pressing, modern problems - from tax avoidance to obesity - society needs to judge a little more and legislate a whole lot less.

Let's take the example of Jimmy Carr. Here's a man who has done nothing illegal. He used a loophole - a complicated and sophisticated but wholly legal loophole - to avoid paying tax on a huge proportion of the wealth he earns from trotting out snazzy one-liners. Should we, as so many on the left urge us to, immediately leap to legislate away aforementioned loophole?

No. It's there for a reason - to encourage investment in film-making in the UK - and, unless we no longer believe that is a worthy thing to subsidise we should keep it in place. So should we, instead, do as many on the Right urge and leave well alone altogether? After-all, so the argument goes, if this practice is not illegal then questions of morality are best avoided. No.

What Jimmy Carr did went against the spirit of the particular loophole and of the tax system (the democratically willed tax system that our country has decided upon for the time-being) as a whole. It was an act of callous disregard for the wider community of which he is a member and for our collective will, driven by greed. It was, to use the prime minister's own words, "immoral."

So what is the solution? Well we have one. And in Jimmy Carr's case it worked remarkably well. We shame those who fail to live up to our common expectations of virtue. And then, overwhelmingly, they correct their behaviour to meet the demands of decency. Splashed across the front page, called-out by the prime minister, defamed and decried in print and in pubs up and down the country, Jimmy Carr finally saw the error of his ways, repented and atoned. He no longer uses his clever little scheme. He has been chastened. And so have an army of celebs who now, wandering into meetings with their spiv accountants and advisers, will have the image of Jimmy Carr, sack-cloth and all, to help guide their cheque-writing hands.

It's not just matters of money that demand moral, rather than legal, response. The modern world is full of behaviours that are unpleasant but that only the most authoritarian would seek to 'ban'. Obesity is undoubtedly a growing (excuse the pun) problem for many Western economies - with its knock-on effects on our collective health and wealth. The knee-jerk reaction of many politicians, of left and right alike, is to draw up long lists of products to ban or tax. This inclination to proscription and economic pre-punishment is the product of our collective abandonment of notions of morality, judgement and shame. It seeks to use the cold levers of the state where, instead, our communal distaste ought to be enough. We don't need legislation we need liberation. We need to be freed to judge the fat and the feckless so that we can use the traditional instruments of peer-pressure and social control (much maligned, unfairly, as notions) to censor bad behaviour while preserving our liberty.

A final example, which perhaps, illustrates why shame is an idea whose time has come but also why we must guard against a jealous state that seeks to strip it from us. Remember Liam Stacey? He was the deeply unpleasant young man who responded to the (temporary) death of Fabrice Muamba with an outpouring of vulgarity, insensitivity and racially tinged abuse.

Mr. Stacey was pounced upon by his fellow Twitter-users, roundly mocked and condemned, written about in national newspapers; in short he was shamed. The community, revolted by his behaviour and his bigotry, responded. Which would have made for a rather touching tale of the potential for shame be used to cut down the ugly, the hateful and the hurtful. Except the state couldn't leave it at that. Instead it felt compelled to embroil itself. And as a result not only was Mr. Stacey sent to prison for his tastelessness but the community's collective, spontaneous response was neutered and downgraded - no longer were we the final arbitrators the acceptable and the unacceptable, instead we had to rely once more on the state to decide for us. How much better would it have been if the state had left itself out? If politicians had restricted themselves to joining the chorus of distaste rather than seeking means to appropriate it?

Which leads us back to why shame should be liberated and not legislated for. The involvement of the law in questions of pure moral character and taste is unhelpful and, ultimately, ineffective. The more that government attempts to crystallise our contempt for the immoral but ultimately harmless - be it tax avoidance, over-eating or casual unpleasantness - the more it undermines our capacity and confidence to take it upon ourselves, in the common good, to call out and embarrass those who do wrong. And the less we are able to provide such collective responses the more we will hear calls for new laws and regulations to protect us from our shamelessness. It is a vicious cycle. But we can break it - by judging a little more and legislating a whole lot less.