Archive for January, 2011

Prohibition and Regulation: Toward a New Intellectual Party Game

January 26, 2011

Scholars studying ancient Near Eastern cultures tell us the distinction goes back at least 4000 years, well before Biblical times. For at least that long, there have been two kinds of legislation, often existing side by side in the same culture: “Thou shalt not…” and “If a person does so-and-so, then he shall…” The scholars call these two kinds of legislation “apodictic” and “casuistic”, in case you’re interested. For our purposes, it’s easier to call them “prohibition” and “regulation,” and to note that, in nature, neither of them is likely to be found in a pure state; what makes the “chemistry” of our various cultures is the proportion of the mixture.

Prohibition: its advantages and drawbacks

The prohibitionists, in every era, have taken the position that, if something is wrong, it’s wrong, and should be prohibited. Period. If the prohibition is violated, some very stringent punishment is usually incurred, often banishment or the death penalty.

The problem with this approach is that it makes virtually no provision for dealing with the consequences of the prohibited conduct, either for those who engage in it, or for its more or less innocent victims. If the enforcement mechanism breaks down and somebody does violate the law, the system may or may not be able to inflict the ordained punishment, but it will certainly not be able to repair the damage. If non-marital sex and intravenous drug use are wrong, then it’s just too bad if the people who do such things are at risk for AIDS. We won’t do anything to make their misconduct less dangerous, even though we know the spread of AIDS will sooner or later affect people who are, even by the most puritanical standards, completely innocent.

Additionally, prohibitionist systems are highly vulnerable to hypocrisy and blackmail. History overflows with cultures in which drinking, gambling, prostitution, fornication, adultery, dancing, homosexuality, theater, usury, or drugs have been strictly prohibited. Sooner or later, in most of them, a flourishing black market has developed in the forbidden commodities or activities. Anyone with the money or the connections could indulge to his heart’s content. But anybody who made the wrong kind of enemies (individual or collective) might easily find himself accused of such indulgence (truthfully or otherwise) and end up in serious trouble. Often, the law has been enforced only against unpopular or unrespectable people, and has become a powerful tool for enforcing social or political conformity.

Regulation’s pluses and minuses

Regulators, on the other hand, take the position that people are going to do what comes naturally, and all the law can do is make sure the fewest possible people get hurt by it. So they impose restrictions and conditions on the undesirable conduct. They may set an age minimum on it, for instance. They may impose quality controls on intoxicants, to prevent poisoning. They may license prostitutes and check them regularly for disease. They may monitor gambling establishments to prevent overt racketeering.

Naturally, the regulators know better than to expect all of the various regulations to be fully complied with. But they assume, with some justification, that the existence of the regulations at least diminishes the possible damage. For instance, nobody seriously believes that raising the drinking age to 21 will keep many 18-year-olds from drinking; but it does seem to have cut down on drinking among 16-year-olds.

The downside of regulation is, first of all, that it usually creates a whole bureaucracy to administer the system. The members of that bureaucracy are highly susceptible to bribery and other forms of corruption. Normally, such corruption happens on a small, if not individual, scale, and rarely cuts into the effectiveness of the system in any serious way.

Secondly, the regulations themselves are likely to be under constant assault from those being regulated, who spend considerable money lobbying for changes in the direction of leniency. The “revolving door,” through which staff of the regulatory agencies eventually wander off to work for the regulatees, is one of the less savory aspects of that lobbying.

Thirdly, there is the phenomenon known among food processing experts as the “Rats*** Factor.” If some government agency says that a given kind of food is allowed to have no more than .00002 milligrams per kilogram of rat excrement in it, the processors will ensure that each kilo will have precisely .00002 mg. of rat excrement, even if it has to import the rats to do it. Regulatory floors tend very quickly to become ceilings.

Finally, the regulatory mind is by nature disposed to pettifoggery and nitpicking, often at great cost to those being regulated and to the general public. The drug licensing provisions of the Food and Drug Administration, for instance, are world-famous for being simultaneously too lax and too rigid. The FDA has been known to hold up useful drugs for years on end, while allowing all kinds of dangerous additives to slip through the process because they were “Generally Regarded As Safe” twenty-odd years ago.

Religious antecedents

The Calvinist Protestant tradition tends to produce strongly prohibitionist legal systems, most notably in the United States (through our Puritan heritage), Great Britain, and South Africa.
The Calvinists come by their prohibitionism mostly from reading the Bible, which redounds with “thou shalt not”s, and taking its legislation literally (so much so that, in Calvin’s Geneva, a 6-year-old boy was beheaded for striking his parents.)

Interestingly, both Jews–who read scriptures through the lens of the rabbinical commentaries–and Catholics–for whom the Fathers of the Church and canon law serve much the same purpose–have strong regulationist tendencies. Both traditions had trouble with the bare-bones prohibitionism of scripture, and their respective commentaries go to great lengths to interpret it into regulation. The Jewish tradition has made the useful discovery that regulation, if made stringent enough, can actually do the work of prohibition. (For instance, the rabbis set up a system of due process protections for the defendant in death penalty cases which for all practical purposes regulated the death penalty out of existence.) The legal systems of Catholic countries, often based on some descendant of the Napoleonic code, are strongly regulationist, except as regards divorce (in which their total prohibitionism leads to the usual hypocrisy and blackmail–for more information, see the once-popular movie “Divorce Italian Style.”) The legal system of the State of Israel is a hybrid, based on prohibitionist British colonial and regulationist Turkish ancestors, with a mild infusion of regulationist Western liberal ideas.

The American hybrid

Over the past two hundred years, the trend of American legislation has been increasingly regulationist, interrupted by occasional orgies of born-again prohibitionism, usually in connection with some intoxicating substance.

In many areas of American law, prohibition and regulation exist quite overtly side by side. For instance, the Clean Water Act provides that the government will issue permits to various industrial installations, allowing them to discharge only a stated quantity of various pollutants into our rivers and lakes. Discharging without a permit, or discharging pollutants or quantities not allowed under a permit, is a violation. But the Rivers and Harbors Act of 1899 says simply that no one is to discharge any waste material into, or onto the banks of, the waters of the United States. Period. Most water pollution enforcement actions are conducted under both laws. It is obviously easier to get a conviction under the Rivers and Harbors Act, but unfortunately the penalties are much less severe than those of the Clean Water Act, and Congress in its wisdom has chosen to leave them that way.

American law in the area of sexual morality (especially prostitution) seems to have gone the opposite way from the rabbinic tradition, making prohibition do the work of regulation. The periodic “sweeps” of prostitutes from popular street corners are commonly justified in the press as a way of preventing traffic congestion and reducing the spread of disease. Public officials never seriously discuss wiping out prostitution merely because it is against the law; instead they use the law prohibiting it to keep it under control.


This analysis provides us with the makings of a mildly intellectual, pleasantly diverting cocktail-party game (are the French regulationist or prohibitionist? What about the Chinese? Karl Marx? Groucho Marx?) Aside from that, it is useful mainly as the basis of a risk-benefit calculation in developing new legislation. The most obvious place to try it out right now is in the area of drugs.

Everybody on both sides of the most recent elections has talked a strong prohibitionist line on that subject, but several well-informed and respectable people, including a number of law enforcement officials, have been looking seriously at either regulation or complete legalization. The ideal solution, as usual, is probably a hybrid, rather than a purely prohibitionist or purely regulatory approach–but one other than our present mix (regulation as to alcohol, tobacco, and prescription sedatives and stimulants, and prohibition as to marijuana, opiates, and cocaine derivatives.)

All the experts and would-be experts, on all sides, seem to agree that the current mix doesn’t work. But any move toward changing it has to take into account the relative influences in our culture of Catholicism, Judaism, Calvinist Protestantism, and various other religious traditions which have their own tendencies toward prohibitionism and regulationism. Additionally, it should weigh the problems likely to be caused in our particular culture by an increase in hypocrisy and blackmail, on one hand, or of corruption and bureaucratic nitpicking on the other, so that we can decide which will be least troublesome to us. And, while we are doing all this checking and balancing, we must refrain from calling the regulationists “decadent” or the prohibitionists “bluenosed” for acting on their best judgments. Above all, we must be willing to grant the good faith of both sides, if we are to evolve a solution we can all respect.


Intelligence and Virtue by Proxy

January 24, 2011

I just heard David Brooks, at the Commonwealth Club of California, quote President Obama saying, in private, something like “I’m a better speechwriter than any of my speechwriters, a better political analyst than my political director, and a better strategist than any of my strategy guys.” Brooks seemed to think this betokened a breath-taking lack of humility. Which maybe it did, except for the part about speechwriting, which I have no trouble believing. But it can also mean that Obama is missing out on one of the most important tasks of leadership—choosing sidekicks better than oneself at various particular duties.

Chicago’s current mayor started his political career as lead prosecutor for Cook County, thirty-odd years ago. I got to see him up close, on one of his community task forces, and gained considerable respect for him, because his advisers and assistants were all really smart and really good at what they did. All of them, almost certainly, were smarter than he was. Some of them, at least, were more ethical than he was. As a result, he did a really good job as prosecutor. (Once he became mayor, he shifted entirely out of that mode, probably because, since his father had been mayor before him for twenty-odd years, he figured he knew enough to run his own show. It has become increasingly apparent that he didn’t.)

If by some freak of fate I were to fall into high public office (or, I guess, high office of any kind), I would spend the first six months finding the best available people to back me up. If possible, I would want all of them to be smarter than I, and better at their particular jobs than I could possibly be at any of them. That, essentially, was what Franklin D. Roosevelt did, starting with his choice of wife. To a considerable extent, John F. Kennedy did too. A leader is the sum of his staff.

The average citizen, even a politically active citizen, is unlikely to be closely acquainted with her elected representatives in Congress and the Senate. But it’s pretty easy to get to know their assistants in the normal course of activism or business, and it is legitimate to form an opinion of their boss from that knowledge. For most of us, it is the only sensible way to form such an opinion. Certainly there is no point trying to know a politician from the version of his personality presented to the public by his handlers. The majority of our fellow citizens believe in voting for “the man [sic], not the party.” Since both the man and the party are artificial constructs, this guarantees that we will be fooled again and again. Get to know the candidate’s staff, her “people”, and you have a good chance of making good choices in the voting booth.

Jane Grey

Is Bullying a Childhood Disease?

January 18, 2011

Or: The Upside of the Gun Epidemic.

We are, suddenly, hearing a whole lot about bullying in schools. Schools are making regulations against it. Local governments are even passing laws against it. A generation ago, it was ignored the same way measles and mumps were ignored, as a stage most children had to get through, which most of them would survive more or less undamaged. These days, of course, we don’t ignore measles either. In both instances, it is mostly because we have finally noticed that bullying, and measles and mumps, can be deadly, or at least seriously disabling. I’m not quite sure what brought the grave consequences of “childhood diseases” to our attention, but I’m pretty sure what did the job for school bullying—guns. As long as the victims of bullying suffered in silence and the perpetrators were given the protective cover of “boys will be boys,” adults didn’t have to take notice. But when both bullies and victims turned up in school with guns, the jig was up, the cover was blown, and the cat was out of the bag.

We are all acquainted with the basic pattern. A kid will be targeted for being fat, or skinny, or dumb, or smart, or sensitive. His classmates will vandalize his property, beat him up, steal his lunch money, or stuff him into lockers on a regular basis. The kid will seek help from the teachers, who will generally tell him that “you will have to learn to solve your own problems,” or will tell all the students that “all of you will have to learn to resolve your own differences,” as if the problem were merely a disagreement about whether Eminem or Fifty Cent is the better performer. If the pattern continues, all the kids involved, both victims and perpetrators, may be punished, with majestic impartiality, for “fighting.” Sometimes the punishment will involve victim and perps being placed in detention in the same room.

At some point, some adult, either teacher, “counselor”, or parent, will tell the victim “if you just don’t react to what they’re doing, they’ll stop. They only do it because you show them how much it hurts.” This tells the victim two things: (1) that the bullies aren’t picking on him out of ignorance (no matter what Socrates says), they really want to hurt him; and (2) what they’re doing is normal and natural; he’s the one with the problem.

A more up-to-date approach currently being tried in some schools is the teaching of “victim empathy,” or “how would you feel if somebody did that to you?” This at least has the merit of recognizing that it is the bully who has, and is, the problem. But it ignores one of the more remarkable findings of social scientists who study bullying, which is that a large proportion of the victims also engage in bullying behavior themselves, and vice versa. So they already know exactly how it feels when somebody does it to them. In fact, that may be why they do it—revenge, or inoculation, or trying to get in with the perp crowd for their own safety.

But at some point in this pattern somebody—apparently it can be either the victim or the bully—will show up at school with a gun and blow away several teachers and classmates. Then we start to deplore violence in our schools.

Is bullying universal, among all children and adolescents? We don’t know. We do know it isn’t restricted to 20th- and 21st-century North America. It turned up in Victorian England, and is widespread in Japan.

The use of laws and regulations to deal with bullying seems excessive to most of us, accustomed as we are to regard anything done by or to children as insignificant. But, ultimately, we have been persuaded by the introduction of guns into the equation that this stuff is more serious than it looks. Reluctantly, we are willing to “criminalize” what is still viewed as more or less normal juvenile behavior. What we have not yet been willing to recognize is that most of it would already be criminal, if the victim were an adult. Beating him up? That’s assault and battery. So is stuffing him into a locker. Stealing his lunch money? Petty larceny. Vandalizing his property—that’s criminal damage to property. Even the less physical kind of bullying typically engaged in by girls is usually prosecutable as defamation, harassment, cyber-harassment, stalking, and invasion of privacy. And would have been, long since, if the victim were not a child.

We really have viewed bullying between children as a kind of childhood disease which can confer immunity against the same kind of problem among adults. “Let him learn how to handle it now, while the stakes are low,” we sometimes figure. “Then he’ll be able to handle the Boss from Hell, or the Drill Sergeant.” Unfortunately, like measles, bullying in childhood can kill or disable. And, like measles, bullying among adults can also be deadly. (See the literature on workplace bullying for more data.)

Are laws the best way to solve this problem? Probably not, especially in the US where we tend to ignore most of the laws against physical battery and assault, except those protecting specifically vulnerable populations like women, children, people with disabilities, police officers, and ethnic minorities. We really haven’t internalized the laws against beating up on “people in general,” which is why laws against domestic violence, child abuse, elder abuse, and so on, have had to be imposed in the first place. And probably why so many of us—especially those not protected by those particularized laws, like adult white males–feel it necessary to carry firearms.

I suspect, though I know of absolutely no data to support this, that the most effective way to teach our young physical self-restraint is something like the ethical codes imposed in classical Greece and Rome, the Samurai in Japan, and the knightly orders in the Middle Ages: a code that says “We are the _________________ (choose your preferred highly-regarded identity). So we don’t ______________________________(choose your preferred nasty behavior.)” Something like the West Point honor code, although that has obvious drawbacks. (Probably they all do. If we are going to invent one, we should be prepared to revise and tweak it continually.) Something that may even encourage the carrying of arms, so long as it also discourages using them. (I’m thinking here of my grandfather the Colonel, who taught all of his children to clean, load, and shoot a gun, and also taught them “you don’t pick up a gun unless you intend to shoot, and you don’t shoot unless you intend to kill.”)

But above all, it would require adults, including highly visible adults, to lead by example. We don’t want the kids to think that as soon as they’re grown up, they can beat up on people as much as they like. There are plenty of role models out there, even among our regularly armed citizens, such as police officers and soldiers. But the cops and soldiers who themselves regularly engage in bullying would need to be placed under better control. If we want to keep kids from shooting up their schools, we will need to start with the rest of us. And if we are serious about telling them “violence is not the answer,” we will probably need to come up with a better question than “How can I get what I want, when I want it?”


Business, Jobs, Work and Pay

January 17, 2011

Business has, over the past 15 years or so, somehow gotten the idea that hiring an employee is an act of philanthropy, or at any rate a favor the employer does for the employee, for which the former is entitled to all kinds of recompense and reward from the employee, the employee’s family, and the community at large.

Lost in this scheme of presumptions is what the employee does for the employer. First, of course, s/he makes goods or performs services which enable the employer to make a profit. But second, and almost as important, s/he buys goods and services, from the employer and from other employers whose workers in turn buy from employer #1, and so on. And third, the employee behaves like an employed person, a person with a stake in the economy and the community. Which is to say, s/he votes for local officials who are hospitable to business; s/he encourages his/her children to work hard in school, and even volunteers on school projects; s/he does his/her part in keeping the community neat, clean, and safe; s/he does not vandalize local businesses and assault their customers and employees.

The business that “downsizes,” not from any pressing need, but because everybody else is doing it and that’s how you look lean and mean to your competitors and your stockholders, is losing out on what its employees do in all three areas. It loses not only the goods produced and the services performed by the laid-off employee (these can often be made up for by working the remaining employees a bit harder, at least in the short term), but also the profits to be made by selling goods and services to its ex-workers –or the ex-employees of the business down the street, which has been encouraged to emulate your staff cuts.

But, perhaps most important in the long term, you have lost the benefit of operating in a community of employed people, people who have something to gain by not trashing your business or anyone else’s, people who have something to gain by making and implementing long-term expenditure plans for homes, appliances, new cars, education, medical care, and travel. Once you have laid off your employee, and s/he sees other workers all around suffering the same fate, s/he ceases to plan for the long term or to be at all interested in your fate. S/he will spend only for immediate necessities, and vote only for the alternative least likely to raise taxes. If that means the road in front of your plant disintegrates into oatmeal and mud, so be it. If that means his/her teenage sons come around to throw rocks through your windows or stead hubcaps in your employee parking lot, that’s life.

The employer who will not recognize the benefits its employees provide is doomed to do without them.

Red Emma