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Prohibition Rules of the Road
In an ill-fated attempt to listen to all 328 Ricochet CPAC podcasts in one marathon sitting, I ended up passing out somewhere between the one where Jay Nordlinger tries to convince Carly Fiorina to honor the warranty on his old printer and the episode where Charles C.W. Cooke negotiates a kitchen remodel for his condo with the Benham brothers. When I recovered my senses, the podcasts were closed and a post on prohibition was on my screen. I began investigating and noticed that there have been quite a few posts on prohibition over the last week (here, here, and um, here to name a few). These have been highly interesting, but tend to focus on very specific issues such as particular drug legalizations, prostitution, and which degree of cousin it is acceptable to court……Okay, have not seen that last one, but I’m sure it will soon be posted. I’d like to take a step back and ask the question of what framework of thought should be used when determining prohibitions? In my experience, I find there are generally two camps.
The absolutists tend to say that as long as you are not causing obvious harm to someone else, it should be legal. This seems to be a clean approach but leads to some interesting mental exercises. For instance, what if Apple wanted to invest the bazillion dollars it has in the bank into researching the creation of a new strain of smallpox? Should this be allowed? You might counter that this is ridiculous and theoretical and no company would have an incentive to create a killer virus when there is always a new version of iJunk – sorry, Apple lovers – to produce, but the question remains. Does an individual or organization have the right to pursue any endeavor no matter how potentially harmful it could be as long as he/she/it is not, in this pursuit, harming others?
The other approach is to include some measure of the propensity or magnitude of potential harm into the equation. Drug X has relatively minimum potential harm outside the user but George Soros buying a neutron bomb has too much potential for destruction and should be prevented. The trouble with this thinking is it can quickly be used by Mayor Bloomberg to justify the size of your Slurpee or how much stuffing you can have in your Oreo. What objective measures can be used to balance personal rights against concerns of potential danger to the population?
I suppose, like most things in a liberty-minded republic, it comes down to responsible citizens reasoning through what makes the most sense under a framework that generally errs on the side of freedom. Unfortunately, in the days of micro-aggressions and the sixth season of the Kardashians, I fear such people are in short supply in 2015.
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Abolish bicycles, or maybe just incarcerate all cyclists. I’m tired of their lawless ways.
And this is why the SoCons/VirtueCons have a point, but the corrective leads away from liberty. Well, unless we want to acknowledge Darwin (in the awards sense) and let the gene pool get a good purge.
I don’t know if it’s possible to come up with a formula, unless one is an absolutist. I think we just have to take each issue one at a time. I think our default position should be one of freedom. The burden should be on the prohibitionists to explain why something must be forbidden, rather than assume everything controversial should be forbidden unless people can prove that they really need the controversial thing.
I’m sick of anti-gun people for instance, saying “But no one needs a (fill in the blank) for hunting.” Every one of us has things we don’t need. Do we really want to live in a society where government determines what we need and then forbids us from having more than we need?
It makes it easier to get behind prohibiting something when there is a tangible victim. I really don’t care for the argument that if we allow A, then in some circumstances B might follow, when occasionally could lead to C, which has an outside chance of leading to D. And nobody wants D. Therefore, no A, even though the percentage of times when A has lead to D is miniscule.
I think that this is one of the best starting points you can have. You begin by assuming that your fellow citizens are competent to manage their own affairs and that you have no moral right to override their preferences. Then you look for boundary transgressions. If you do X and it causes harm A beyond a sufficient threshold such that other members of society can begin to recognize it as a direct and tangible harm, we think about prohibition.
Thinking that the basic philosophy of liberty respects the Harm Principle doesn’t require that harms be immediately physical — just direct. This is to say, we can trace it back to the source without too many hops that stress reason. Living in society we have to accept some tradeoffs of personal liberty – its just important to understand when we make those tradeoffs and not regard any tradeoff as a situation where we absolutely obtain some good.
With all of that said, the harm of the drug trade is definitely a concern, but the nature of black markets is that they thrive in the darkness of prohibition. Also, the economic harms of incarcerating a large amount of citizens is a direct harm against society.
On the other hand, the harms to the individual and his family when he uses drugs are real, but limited in terms of their impact on society. Further, as is often said, it makes much more sense to use the money we use for imprisonment on treatment facilities.
All in all, drug and alcohol prohibition are a net negative for society (IMHO).
Scientific studies have shown that third cousins show the right balance of endogamy and exogamy.
True and agreed. However, in many instances (eg drugs and prostitution) the prohibitionists already made that case and already effected the appropriate policy. To now change that policy indeed requires a case to be made from the other side.
Furthermore, is anything other than a fully-documented utilitarian analysis admissible into the proceedings?
That’s why the drug issue is different; the chemicals in the serious narcotics actually impair the judgment centers of the brain. You can’t assume they’re competent to manage their own affairs. All addiction-causing products have that same dilemma; to what degree does the use of the product impair that particular person? It varies with individuals, but that doesn’t mean we can ignore that addictiveness.
Why is addictiveness a state concern? Because we have ample evidence that the addictive behavior leads to crime. It diminishes the capacity of the addict to restrain himself.
So, in other words, I agree that that there is no set formula, and it will take prudence to manage the level of prohibition.
The burden of proof on prohibitionists far exceeds utilitarian calculus. The harms must far outway the benefits before liberty is overcome.
And the current policy can be wrong even if the other side is incapable of convincing a critical mass of individuals. A change in policy does require a case to be made under our system, but in a just world an unjust policy would simply vanish.
Right, people in favor of greater liberty can’t just sit back and wait for it to happen. I’m just stating that the way things ought to work (but do not) is that the legislators and their constituents who talk about their love of freedom should have a strong bias towards freedom and away from government control. The presumption should be that we are adults and we don’t need to be governed as if we are all 12 years old.
Ehh… my strategy is basically to sit back and wait for it to happen (and occasionally talking about it when it comes up). It’s working about as well as any other strategy would, without having to effectively beat my head against a wall.
Boy, that really depends. The vast majority of people I’ve known who smoked cigarettes were or are addicted to them. None of them broke any laws to support their habit. People in some states that have very, very high tobacco taxes do sometimes buy smuggled cigarettes, so they are breaking the law. But maybe it’s the law that is wrong, not the smokers.
I suppose my point was that perhaps freedom-lovers actually did take that bias and presumption into account when the laws were originally passed. Perhaps they actually made a case rather than simply imposed their will on others for their anti-liberty ends. I suppose further that it’s far from obvious that pro drugs and pro prostitution are the liberty positions.
The place where I usually deviate from Libertarians is that I am OK with prohibitions at the local level. However, I am against prohibitions as the jurisdiction of that government increases.
I also think of this the other way also – national imposition of “Constitutional Rights” through the courts and the law are also bad.
Overall I believe in government as markets, and I support communities coming together to form governments for mutual benefit. Markets usually work best when there is dynamic competition. For government markets the competition part needs to be enforced by the government levels above, by making sure that the “right of exit” is a true option for the members of a local government.
If you are comfortable with private contracts — as most Libertarians say they are — you should be comfortable with social contracts, which is what you enter into when you choose to live in a community.
Or you can simply disagree that social contracts are logically consistent.
Lots of companies invest bazilli0ns of dollars to create new strains of viruses and bacteria of varying lethality all the time, for the purposes of turning them into products of use to humanity.
Just look at Botox, which is based on the bacteria which causes botulism.
The argument that says Apple should automatically be prohibited from conducting research on the Smallpox virus would have also automatically prohibited doctors from researching beneficial uses for the botulinum toxin in the 1950s and 1960s.
http://www.nbcnews.com/id/21369061/ns/health-skin_and_beauty/t/frozen-time-botox-over-years/
(Of course, if a private company did want to conduct Smallpox research they would have a very difficult time getting any samples to start with, as all the samples in existence are (supposedly) all under governmental lock and key.)
Furthermore, it’s entirely arguable that the smallpox virus would have gone extinct a century ago if it hadn’t been for governments keeping stockpiles of the little bugger for their own nefarious purposes.
The first smallpox vaccine was developed way back in 1796. By 1914 it was virtually eradicated in the industrial world, and vaccination was discontinued in the 1970s.
The only people who worked to keep the little beastie alive worked for governments.
http://en.wikipedia.org/wiki/Smallpox#History
I think another factor has to be considering whether to impose or overturn a prohibition, that is how effectively can the prohibition be enforced, and can it be enforced fairly and does the enforcement demonstrably curtail the negative effects on society the prohibited thing causes? Also, what negative effects does the enforcement itself have on society?
Boxcutters and other sharp objects became prohibited items onboard airplanes (thankfully there’s not also a penalty for ‘trying’ to smuggle nailclippers onboard) In order to enforce this prohibition millions of travelers have to pay a ten dollar fee and be held up an average of 1/2 hour. The amount of lost production time of some of our most productive people is staggering. However this seems to be a rule that is effectively and fairly enforced.
Gambling. Gambling is potentially addictive and it could be argued that addictive personalities will find gambling and ruin their lives -and others lives – as a result. It’s legal everywhere. There is no mechanism to stop compulsive gamblers other than public service announcements for 1800 GAMBLER. Somehow the world still turns and the sun rises.
Alcohol, if it were a new substance introduced today -a new designer drug -it would be rightfully considered the worst when all factors are considered, and if it weren’t in widespread use and easy to make, I would not want to see the substance legal. IHowever it is legal almost everywhere and no doubt the single-most contributing factor to calls for police . Car crashes, bar fights, domestic violence, assaults, vandalism, disturbing the peace ad infinitum.
The only reason I believe gambling and alcohol are legal is because the state realized they could not enforce a prohibition (and also realized they could make money).
It’s easy to prohibit a company from manufacturing a virus or a neutron bomb. It’s a whole other thing to demand an entire population conform to some standard and if they don’t you are going to make every last one of them do it by force.
I think this is exactly right and most often missing from prohibition discussions. The problem is effectively forbidding something a substantial number of us want to do. Society incurs large enforcement costs and, worse, courts corruption of the justice system (when you get between willing sellers and willing buyers in a highly profitable transaction, money flows that way naturally). If the enforcement is ineffective, we lose respect both for law and the police power of the state. If enforcement is effective, how long before the revolution? Romans apparently advised against passing laws most people won’t follow and I hear they weren’t exactly sissies when it came to enforcement. (Not sure where I read that; it may just be an historian urban legend). I suspect murder and theft are in control only because so few of us find them appealing activities (although why we find it so damned entertaining to read about and watch on stage, screen, and television is an interesting question.)
That’s not unreasonable. How do you distinguish that from direct democracy? Under a system where a substantial number of people wanting to do something wins out over some conception of harm or some other limiting principle, why should a libertarian’s view of the harm principle be any more an obstacle to, say, welfare or slavery than a conservative’s view is to prostitution?
Easy. Welfare takes from one person for the benefit of another. If someone who is drinking and making noise outside your window, his noise is bothering you – not his drinking. Just because the drinking caused the noise or the punch or the accident is not relevant.
Slavery, really? The person enslaved has a say doesn’t he? Come on….
We are not talking about a system of government here. We are talking about where a government can effectively enforce laws and prohibitions fairly and without harming large portions of the population or for that matter the nations economy and prosperity, and without overtaxing it’s forces, and without damaging the relationship between citizen and government.
What do you think about the relaxation of gambling laws in the US over the last 25 years?
As I asked SParker: why should the libertarian conception of harm which underlies your easy answer be the guide when other people have different conceptions? More to the point I originally brought up: doesn’t some harm framework outweigh the desires of a substantial number of people?
In other words, the desires of people would be irrelevant one way or the other if we could agree on the appropriate harm framework.