"Draft" One(a)

For an explanation of where we are, see the previous post.

Here is most of what I have so far. My usual caveat, one that I put on much more complete papers, applies with even more force here: this is incomplete, comments are welcome, and the references are particularly incomplete. In short, things are not pretty, folks.


Regulating Vice

“He who seeks to regulate everything by law, is more likely to arouse vices than to reform them. It is best to grant what cannot be abolished, even though it be in itself harmful. How many evils spring from luxury, envy, avarice, drunkenness, and the like, yet these are tolerated—vices as they are—because they cannot be prevented by legal enactments.” – Spinoza, Chapter 20, Tractatus-Theologico-Politicus, 1670.

1. Vice

Behaviors that long have been considered to be vices include excessive or habitual indulgence in gambling, some sexual activities, and the use of psychoactive drugs such as nicotine or alcohol or opium. Pornography is often classed among the vices, and US Supreme Court Justice Potter Stewart’s famous abdication from providing a precise definition of pornography – “I know it when I see it” – might equally well apply to vice. Nonetheless, any effort to offer a more detailed, if not more precise definition, likely would invoke the notion of a bad habit, and often a habit where a supposed immorality is at least one element of the “badness.” For this reason, some behaviors that no longer are widely perceived as immoral also have lost their vicious quality, while habits that are losing social favor become more allied with vice. Routines such as excessive book reading or exercise, which can bring negative consequences upon the practitioner and his or her intimates, avoid the vice label through their lack of the taint of immorality.

An excessive attachment to armed robbery might constitute an immoral routine, but such a commitment lacks another component of vice, namely, that vices, at least in some of their common manifestations, do not involve any direct harms foisted upon non-consenting bystanders, do not involve any substantial negative externalities. That is, indulgence in a vice might harm the indulger, but others needn’t fear any immediate danger, especially if the vicious activity does not take place in a pubic setting. If someone down the street from you habitually drinks alcohol, or smokes crack, or is entertained by prostitutes, you generally can rest easy, at least if their practices are committed in private. A committed burglar down the street is worth more of your concern. Unlike burglary, many vice behaviors, to employ the terminology of Bentham and Mill, are self-regarding.

2. Why Regulate Vice?

The shared qualities of vicious habits, especially the lack of direct harms to others, suggest the possibility that desirable regulations for various vices also will possess some common features -- features that might not make sense when controlling activities such as burglary that involve serious harms to others.

Why should vices be controlled at all? One possibility is that a subset of vicious activities, such as drinking to the point of inebriation, though self-regarding in themselves, might be closely connected with harm to others: drunk people often put others at serious risk through automobile accidents and interpersonal violence, and annoy their communities through loud and boorish behavior. If methods of directly controlling such ancillary harms are deemed to be insufficient, then some regulations upon drinking aimed not so much at controlling alcohol consumption as at limiting the follow-on behaviors might be sensible. A similar principle might apply with respect to protecting children: some controls on adult vice might be enacted to help shield children from vice, if it is not possible to effectively control child access in an unregulated environment for adults. Indeed, those substances or behaviors that are unregulated even for children tend to be at the edges of what is considered vice: caffeine and sugary foods are cases in point.

The need to deal with threats to the underaged and with externalities does not exhaust the rationale for controlling vice, however. Vices can harm their consenting adult participants, and a bad habit can shade into a compulsion or addiction. The standard time profile of the chief effects of a vice involves current pleasure and future pain, and the pain is not a certainty. A regular drinker might not become an alcoholic, a regular cigarette smoker might not get cancer. In the face of what often seems to be an excessive interest in instant gratification, current benefits paired with uncertain future costs are likely to lead to overindulgence, even from the longer-term point of view of the vice participant himself. Vices seem particularly likely to compromise rational decisionmaking, in the form of acute loss of restraint by the non-addicted as well as in addiction itself. While addiction does not eliminate all control, it does press hard against limited stores of willpower, to the point where it is common for addicts and seasoned observers to think of addiction as a disease of the brain. The basic economic argument for laissez faire is that, in the absence of harms to others, an unfettered competitive marketplace leads to maximum overall wellbeing. This argument is inapplicable, however, if individual decisions are the product of disease or are otherwise less-than-rational.

The idea to regulate adult vice for the sake of protecting kids and protecting against harms to others is not itself particularly controversial, though there might be significant disagreement over what specific controls will accomplish those ends, as well as differences concerning the likely costs of potential regulations. Protecting adults from their own decisionmaking tends to be more controversial, however. John Stuart Mill, for instance, would support attempts at persuasion, pro or con, at least if those attempts are not undertaken by parties with a pecuniary interest in promoting intemperate vice consumption – but Mill’s harm-to-others condition for societal coercion generally would not permit regulations aimed at reducing adult vice consumption. Certainly the prohibition of a vice would not be countenanced by Mill, any more than bans on other dangerous, self-regarding activities, such as swimming or skiing, could be countenanced. The “sin taxes” that often are enacted against legal vices often seem to be more interested in raising revenue (and perhaps registering societal disapproval) than at reducing consumption. Mill himself approved of sin taxes if their aim was to raise revenue – but not if their motive was to dissuade vice consumption – and therefore, his approval only was forthcoming as long as the taxes did not exceed the revenue-maximizing level.

Actual vice policy frequently is quite un-Millian, however, in that highly restrictive policies are enacted that have as a major aim protecting adult consumers, often by threatening negative legal consequences upon those who choose to engage in the vice. Policies that threaten to harm people to deter them from harming themselves tend to invoke the full range of rationales, of course, including the protection of children and the need to prevent harms to others. But to the extent that harms to the users are driving the restrictive policies, these policies seem to involve a self-contradictory view of rationality: adult vice consumers cannot be trusted to make decisions that are in their best interests, but the punitive measures will only provide deterrence if those users respond rationally to the legislated legal consequences.

Even in a world without vice-related public policies, vice would still be subject to informal social controls: the immorality that is associated with vice needn’t dissipate just because the law is not mobilized. Agitation by moral entrepreneurs and religious groups for temperance or abstinence is a standard element of discussions surrounding legal vices.

3. Surveying the Range of Controls

a. Prohibition

Most vices, including forms of gambling, prostitution, pornography, alcohol, tobacco, and other psychoactive drugs have met with prohibitions at certain times and places, including contemporary times and places. The term “prohibition,” however, can be applied both to very strict and rather lenient regimes, not only because of variation in enforcement and associated penalties but also because of disparities concerning the precise vice-related activity that is prohibited. In the case of a drug, for instance, it is possible that there might be a full range of prohibitions, including bans on manufacture, transport, sale, advertising, purchase, possession, consumption, or even possession of inputs (precursors) or complements to consumption (paraphernalia). National alcohol prohibition in the US (1920-1933) did not involve a ban on consumption, purchase, or possession, though the latter two elements are banned for many of the currently illegal drugs. Sales of cannabis are prohibited in the Netherlands, but a formal non-enforcement policy has opened the door to de facto legal (small-scale) sales. Some countries have followed the lead of Sweden by adopting a prohibition on prostitution that bans the purchase, but not the sale, of sex; this policy reverses what in the past often has been (and in many places still is) the legal situation, where sales of sex are illegal but purchase is legal or informally condoned.

b. Licensing and other Controls on Manufacturers and Sellers

Vices that are legal (in some manifestations) nonetheless often are highly regulated, and one element of that regulation typically involves the licensing of manufacturers and sellers. Commercial liquor producers, distributors, and retailers, for instance, are licensed in the United States. Lottery providers generally are licensed (or the state operates its own lottery monopoly), as are casinos. Brothels are licensed where brothel prostitution is legal, and cigarette sellers tend to be licensed as well. The licensing helps to restrict entry, as well as to enforce rules aimed at limiting externalities (such as public nuisances) and access by minors; licensing also facilitates tax collection.

c. Taxation One of the standard approaches to the correction of externalities is to impose a compensatory tax. The idea is to choose the size of the tax so that the costs imposed upon others are fully internalized by the decision maker. Such a tax, termed a Pigovian tax, perfectly compensates for the original distortion, leading individual rational decision making to serve the social good. There is a strong case for vice taxes to at least cover the average external costs of vice-related behavior. In the US, alcohol tends to be taxed at too low a level compared to the Pigovian standard, whereas cigarettes are taxed at a level that exceeds expected external costs. But taxes beyond the standard Pigovian levels might be more preferred, if individuals overconsume their vices due to their own rationality shortfalls. To the extent that excessive consumption is stoked by present benefits paired with delayed and probabilistic costs, vice taxes, paid implicitly or explicitly by the consumer, can compensate, potentially leading to increased wellbeing.

d. Prescription

e. Individual-level controls

f. Voluntary controls

4. One Potential Guiding Principle to Vice Regulation

5. Changing Times

6. Vice 3.0