Prohibition and Regulation: Toward a New Intellectual Party Game

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.




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