Draft Two(a), Section 1

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 often is 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 (Jacobellis v. Ohio, 378 U.S. 184 (1964)). 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 compulsive 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.