Archive for the ‘sumptuary regulation’ Category

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.


The Lotos Marketers

September 4, 2009

Is it weird or what, that a huge proportion of our law enforcement resources are dedicated to keeping one group of people from taking one set of drugs, and an equally huge proportion of our mental health resources are dedicated to making another set of people take another batch of drugs?  Sounds to me like a failure in marketing.  And that’s not even taking into account what the pharmaceutical establishment spends on direct advertising, to get yet another group of people to take yet another batch of drugs.

Psychoactive drugs have a lot of problems. For one thing, some of them are dangerous if not carefully monitored.  Most of them can be dangerous in combination with other psychoactive drugs, or other kinds of medication, or even some common kinds of food or drink.  There is no drug that works for everybody with a particular diagnosis, and there are some people for whom no psychoactive drug works.  But what makes it worse is that, even when a drug “works,” that does not necessarily entail making the patient feel any better.  Normally, we 21st-century Americans expect a drug to be something you take when you’re feeling bad, and then it makes you feel better. But for people with mental illness, especially the manic phase of bipolar, a drug may well be something you take when you’re feeling absolutely terrific, and then it makes you feel awful, or at best, blah.  This makes medication compliance problematic.

Cocaine dealers have no such problem.  They have no marketing budget. They advertise only by word of mouth.  They don’t have to wine and dine physicians to get them to prescribe their product (though, if we are to believe Sudhir Venkatesh in Drug Lord for a Day, they do have to cultivate a structure of lower-level dealers.) They dispense their product to people who are feeling blah, or even worse, and the purchaser ends up feeling terrific for a while, and then really awful until the next dose.  Which pretty much guarantees that there will be a next dose.  Psychiatrists should be so lucky.

Cocaine dealers, of course, might have trouble getting their product past FDA (unless it has been around so long as to be Generally Regarded As Safe, which maybe it has.) Quality control in manufacturing is spotty at best, and the distribution chain may degrade the product even further.  But nobody has to stand over the cokehead to make sure the dose is properly ingested, or remind him/her to be sure to come back for the next one.

At any rate, what the manufacturers of psychoactive drugs obviously need is a pinch of cocaine or a spoonful of sugar or something to make those who take their products feel good, or better still, terrific, at least for the first few hours after taking it. (Yes, I do remember the intoxicant invented by sci-fi writer Robert Heinlein, which made you feel absolutely awful after drinking it in the evening, and the next morning you would wake up feeling utterly blissful. It was called, if I remember correctly, “Scrotch.”  Much though I respect a lot of Heinlein’s imagined futuristic products, most notably the water bed, I think Scrotch is a behavioral loser. Most people, especially those in search of a good high, just aren’t that good at deferring gratification.)

Maybe we just need to condition patients to associate taking their meds with something else really pleasant, like good food, or sex, or music.  Something, at any rate, more fun than having a social worker stand over you to make sure you’re really swallowing.  Or maybe we need to play tricks on  patients to make them see the medication as a reward (the way we condition small children to want candy by giving it to them when they follow the rules.)  “Eat all your spinach or you can’t have your meds tonight,” “Last one in the water doesn’t get meds,” or whatever.

Or maybe we should just sack all the psychiatrists and psychiatric nurses and social workers and replace them with drug dealers who know their job, and who, furthermore, don’t get paid unless the patients actually take the meds. This solves two problems at once, providing lawful and socially useful employment for drug dealers, and keeping psychiatric patients properly medicated. We could put all the disemployed shrinks and their flunkies to work in the newly expanded ObamaCare system caring for all the people who have finally gotten access to health care, thereby solving yet a third problem.  Tune in next week for the latest proposal to combine high-grade cocaine with a contraceptive. You heard it here first.

Red Emma



American Culture and the Law

August 31, 2008


Americans generally pass laws as a statement of public morality.  We would be equally horrified to see them repealed or enforced.  Speed limits, for instance, are rarely enforced. When they are enforced, it is either in really egregious cases where public safety is grossly endangered, or purely for the purpose of raising revenue or keeping some group of social inferiors in their place.  The one thing we clearly don’t intend to do by setting a 55-mph speed limit on a highway is to keep all traffic moving at or below 55 mph.


Most Americans don’t believe in speed limits.  They will tolerate (just barely) being ticketed for exceeding them by outrageous proportions, but they respond with rage to being forced to obey the limit by being stuck behind some driver doing the exact legal speed.  “Nobody can tell me how fast to drive,” as one driver said in response to a Chicago Tribune poll some years ago.  It seems not to occur to them that, by tailgating slower drivers, or zooming by them, or even sideswiping them, at speeds considerably above the limit, they are telling those slowpokes how fast they have to drive.  We not only have no right to enforce speed limits, we have no right to obey them. 


Our drug laws work pretty much the same way. If we really intended to stop all use of “illegal” drugs, and all underage use of alcohol and tobacco, we would have to devote a lot more resources to the problem than we are willing (or able) to do.  There are two alternatives (other than repeal) to a serious enforcement program.  One is to go after only the big traffickers, and the other is to go for the largest number of users and sellers.  We have, clearly, chosen the latter.  It gives us the illusion that we are benefiting society as a whole, when we are actually creating a lot of misery.


Similarly, our laws on abuse of spouses, children, elders, and so on, laudable as they are, were necessary only because we rarely bother enforcing our laws against simple assault and battery, or even against the aggravated species, where non-strangers are involved, even though those laws contain no such exception.  Now that we have decided people ought not to be allowed to beat up on those near and dear to them, we have to pass a whole new body of laws to do the job. 


Almost every legislative aide, whether on federal, state, or local level, has had the experience of being asked by his/her legislative boss to research and draft a bill dealing with some outrageous current problem about which the boss’ constituents are especially concerned, only to have the research reveal that a law forbidding the conduct in question has already been on the books for several decades, basking in obscurity.  Most often, the boss’ response is not to start a campaign to enforce the old law–s/he will still get better publicity and mileage with the voters by pushing a new law, however redundant.  And, I suspect strongly, most voters really don’t want to encourage the enforcement of obscure statutes already on the books.  Most of us are well aware that we probably violate dozens of such laws every day, and could not possibly afford to pay the penalties for all of those violations.


Americans love to pass laws, but we don’t much like obeying them.  For example, next time you see somebody smoking near you in a no-smoking area, try telling him it’s against the law.  Chances are, the smoker will respond, at best, with a sneer, and at worst with outright physical violence.  Now have a confederate come along and ask him/her to stop because it really kicks up the confederate’s asthma.  Chances are, the smoker will gladly comply, and may even apologize.  We are nice people, but we are anarchists at heart. 


Americans also mostly don’t like religious rules.  It is the presence of rules and authority that constitute the difference between “religion”, which most Americans are uncomfortable with, and “spirituality”, which we are currently in a desperate search for.  The Augustinian “love God and do what you will” appeals very directly to us.  Most of the people who have fled the Catholic church over the last thirty years have done so in reaction to its rules against contraception, divorce, and eating meat on Friday.  The church never did back down on the birth control ban, but has devised numerous ways around the ban on remarriage after civil divorce, and has totally scrapped meatless Fridays.  Now, interestingly enough, it is trying to reintroduce them, but not (heaven forbid!) as a “rule.”  Now it’s a “spiritual practice,” (which is probably what it should have been all along), and it may make a successful comeback in that capacity. 


Interestingly enough, the Europeans always viewed such rules the way Americans view speed limits, and had no problem maintaining some attachment to the church while completely ignoring the rules.  Americans, on the other hand, felt obliged to take them seriously, on the pain of “hypocrisy.”  Generally speaking, we reserve that term for the purely moral realm, for anyone who aspires to be good but has not yet attained perfection.  In other areas of our lives, most notably politics, hypocrisy is not only permitted, it is obligatory.  The Republican Party’s current leaders are all men who uphold “family values” and military service to the country, and almost all of them have been divorced and remarried at least once and managed one way or another to avoid service in the Vietnam War (although they never publicly opposed it.)  The Democrats, on the other hand, are led mostly by men who are still married to their first wives, with varying degrees of fidelity. Some of them served in Vietnam, but even some of them believed at the time, and all of them believe now, that it was a bad idea.   


Indeed, the Republicans, while deploring adultery and the movement for gay and lesbian rights, have a remarkable number of closeted adulterers and homosexuals among their number.  The “big tent” is more like an overgrown closet.  And it is the closeting that matters.  The Republicans believe in the civilian equivalent of “don’t ask, don’t tell.”  What people do in their own bedrooms is their own business, they believe–as long as the rest of us are equally free to discriminate against them for doing it, if we find out. 


“You can’t legislate morality,” is a hallowed American maxim.  The usual evidence for this statement is the ostensible failure of the Volstead Act.  One of the better-kept secrets of American history is that the Volstead Act succeeded in some very significant ways, such as reducing the number of industrial accidents and of deaths from cirrhosis of the liver.  Because no statistics were collected at the time about either drunk driving or domestic violence, we will never know how much these were also reduced, but we can certainly guess.  What we mean by saying Prohibition “failed” is that it did not change our fundamental views on the moral acceptability of alcohol.  In that sense, the laws against underage drinking and smoking, and the speed limits, have “failed” too.  On the other hand, the civil rights laws have succeeded in those terms.  Most of us now really believe that racial discrimination is wrong.  Even those of us who practice it are embarrassed to admit it and indignant if accused of it.


Unenforced and unenforceable laws, like New Year’s resolutions, are mostly just expressions of the people we wish we were, but not to the point of being willing to work at it.  In this capacity, they’re pretty harmless.  But as long as they are still “on the books”, with legal penalties attached, they are dangerous.  They have a pernicious potential for blackmail and discrimination against unpopular and powerless people. 


We are never, of course, going to comb through our statute books and rip out any law that has not been enforced within the statute of limitations on it.  That would involve admitting that our aspirations are doomed to failure, and that we will never be the people we want to think we are.  But there are ways around this conundrum.  Moral aspirations fit very nicely in preambles and introductory paragraphs in which legislators set out the reasons and purposes of legislation.  “Sense of the Congress” statements can serve the same purpose.  The Supreme Court could easily take on a case involving a defendant convicted under a law unenforced for decades, and decide that his due process and equal protection rights had been violated.  There is actually a legal doctrine readily available for their use, and discussed in Griswold v. Connecticut, thirty years ago: “desuetude”–a law unenforced for long enough ceases to be valid grounds for prosecution.  We would, of course, denounce the Supremes as a bunch of permissive libertines, but secretly we would be relieved.  We could aspire without guilt, while unimpeded in our customary sins and crimes.  It would in fact be another way to legislate morality–a stroke of the judicial pen would make us all moral.


Red Emma


July 12, 2008


When I was a kid, growing up in South Florida, we always dried our laundry on the clothesline.  It dried within a day, and always smelled wonderful.  Hanging it out was a chore, but taking it down was delicious. 


Then I moved north, to where, three or four months a year, there was no sunshine to hang the laundry out in.  Most of the places I lived had washers and driers in the basement, and that made perfectly good sense.  Drying stuff on clotheslines indoors, especially in unheated basements, left the laundry feeling and looking really icky. 


But it never occurred to me that there was anything wrong with clotheslines as such, in sunny weather.  Until I started reading about the cosmic battle between eco-homemakers and neighborhood or condo associations.  The former say that clotheslines, at least in sunny weather, are earth-friendly and economical.  The latter say they’re eyesores and make the place look like a slum. A slum?  The neighborhood I grew up in was a slum? No way! (BTW, whenever the Chinese want to throw some sort of international bash, like the Olympics, the government bans clotheslines, too. So this is not just an American thing.)


Well, the latest thing to fall under the eagle eye of neighborhood and condo associations is window-unit air conditioners.  Got that?  Things that (back when I was growing up in South Florida) were considered the height of luxury and the badge of affluence.  Not that my family had one.  But the doctor and the lawyer who lived down the street from us did. I think the lawyer had two of them.  Wow!


Window units have been a hassle for a while, at least in our part of the world.  In the condo building we live in, owners are expected to take them out of the windows in winter and whenever repairs or tuckpointing are being done on our section of the building.  Mr. Wired and I are not as young as we used to be, and we have lived in our unit for forty years.  So we have trouble both with physically moving the damn things and with finding any place for them to sit while out of the windows.  And we don’t really understand why we’re expected to take them out anyway.  We cover them tightly during the winter, so there’s no heat loss.  And anyway, we’re on the first floor of a steam-heated building, so if there were any leakage, it wouldn’t matter much.  Dutifully, we pay our extra assessment for not taking them out, which is about what it would cost to hire somebody else to do the job, and at least saves us the floor space where they would be sitting if we took them out of the windows.  But so far, at least, our condo association has not attacked the concept of window units as such, thank heaven, unlike some developments in the suburbs. 


Installing wall units or central air is bloody expensive.  But now, apparently, it is on the way to becoming the next required sumptuary expenditure after a clothes drier, in an era when we are all supposed to be pinching our pennies.  Whose idea was this, anyway?


And BTW, has anybody done any research on the point at which the heat emitted outdoors by other people’s air conditioners makes it impossible for people in the neighborhood to survive without one?  There has to be a tipping point. Maybe it doesn’t matter, if we already require such homogeneity that nobody with an air conditioner would dream of living next door to a household without one?