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 the entire range of vices also will possess some common features – features that might not be appropriate when controlling activities such as burglary that involve serious external costs.
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 severe 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.
Externalities and threats to the underaged do not exhaust the rationales for controlling vice, however. Vices can harm their consenting adult participants, and a bad habit can shade into a compulsion or addiction. In themselves, harms to voluntary vice participants might not suggest much of a motive for extensive regulations specific to vices. Many human leisure activities, from bowling to ballroom dancing, present dangers to participants; some pursuits, such as mountain climbing and equestrian events, not infrequently involve fatal accidents. We might want to promote proper training and look for ways to make leisure activities safer, but generally we allow adults to weigh the pleasures and dangers of their recreational activities for themselves.
In the case of vices, however, our respect for the primacy of individual choice is eroded by justified suspicions that those individual choices frequently fall well short of rationality. Vice consumption is prone to excess. 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 contract cancer. In the face of the common human frailty of a disproportionate 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, a case of imprudence if not of immorality. That is, among leisure activities, vices seem particularly likely to compromise rational decisionmaking. Non-addicted adults often suffer from an acute loss of restraint in their drinking or gambling, for instance, while the behavior of addicts seems to steer well clear of any sort of informed, rational process. Addiction does not eliminate all control, but it does press hard against limited stores of willpower, to the point where many scientists, seasoned observers, and addicts themselves 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 and undistorted 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 redressing direct harms to others is not itself particularly contentious, 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 divisive, however. John Stuart Mill (1978 [1859]), for instance, would support attempts at persuasion, pro or con, at least if those attempts are undertaken by parties with no 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 are imposed upon legal vices often seem to be motivated more by an interest 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; 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, by threatening negative legal consequences upon those very adults who choose to consume in the face of a 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 and sexual promiscuity.
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