Wednesday, March 12, 2014

Draft Two(a), Section 2

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 be appropriate 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: maybe you should be concerned if your neighbor drinks regularly. 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 applies 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 the common human frailty of 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 addicts. While addiction does not eliminate all control, it does press hard against limited stores of willpower, to the point where addicts, scientists, and seasoned observers often regard 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 direct 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 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 bar 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 disdain) 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 goal that of protecting adult consumers, often by threatening negative legal consequences upon those very adults who choose to consume in the face of the prohibition. 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 involve a somewhat 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-specific 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 such as drinking and gambling.

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