Enforcers

     A great many people, most of them good and decent people, have fallen for the notion that if something is generally deemed “bad” by some widely held standard, then it “should” be illegal. Beneath that conviction lie two others:

1. Not to outlaw it is somehow to condone it;
2. Outlawing it will have net positive results.

     The second of those beliefs can be tested. The first is more difficult to cope with. That having been said, in combination they explain the great majority of all the laws that have been fastened on suffering Mankind throughout recorded history.

     Yet there is evidence that in the great majority of cases, outlawing some variety of conduct either has no measurable effect on its frequency, or correlates with an increase in it. Now, correlations are interesting, but we must not immediately conclude that they reveal causes. Still, they’re evidence that we should not assume a proposed law will have only the effects we expect from it.

     Take the matter of violence in defense of one’s home or other property. Until fairly recently, he who could honestly claim to be defending what is rightfully his was granted the presumption of legal and moral justification for what he does for that purpose. Under that presumption, the aggressor bore the responsibility for what flowed from his aggression. That is no longer the case in much of the United States.

     The change brought unintended consequences. Street assaults and home invasions increased in frequency and in the violence they occasioned. No one wanted those consequences, of course. But we’re not guaranteed to get what we want.

     Nonviolent conduct presents an even more perverse picture. Outlawing alcoholic beverages – i.e., the Prohibition era – caused an increase in drinking, moonshining, and bootlegging. Outlawing private gambling produced state-run and state-licensed gambling that rakes in many billions of dollars per year. Outlawing recreational use of drugs has brought about an explosion in organized crime and police corruption. Yet the laws involved were passed by well-meaning people, with malice toward none.

     In commenting on laws intended to reduce prostitution, H.L. Mencken delivered the verdict on well-meant legislation many years ago:

     There is no half-baked ecclesiastic, bawling in his galvanized-iron temple on a suburban lot, who doesn’t know precisely how it ought to be dealt with. There is no fantoddish old suffragette, sworn to get her revenge on man, who hasn’t a sovereign remedy for it. There is not a shyster of a district attorney, ambitious for higher office, who doesn’t offer to dispose of it in a few weeks, given only enough help from the city editors. And yet, by the same token, there is not a man who has honestly studied it and pondered it, bringing sound information to the business, and understanding of its inner difficulties and a clean and analytical mind, who doesn’t believe and hasn’t stated publicly that it is intrinsically and eternally insoluble. For example, Havelock Ellis. His remedy is simply a denial of all remedies. He admits that the disease is bad, but he shows that the medicine is infinitely worse, and so he proposes going back to the plain disease, and advocates bearing it with philosophy, as we bear colds in the head, marriage, the noises of the city, bad cooking and the certainty of death. Man is inherently vile—but he is never so vile as when he is trying to disguise and deny his vileness. No prostitute was ever so costly to a community as a prowling and obscene vice crusader, or as the dubious legislator or prosecuting officer who jumps at such swine pipe.

     With regard to the general improvement of public morals, what has proved effective is the disapproval of others, and the consequences that follow. The evidence suggests that morals and ethics are best imposed through social mechanisms: customs, education, denunciation, ostracism, etc. Many a practice of times past was dedicated to exactly that sort of improvement. If the community has behavioral standards that its members are willing to uphold through public disapproval and ostracism, those things usually suffice to curb disapproved behavior – to hold it to an irreducible or “threshold” level.

     From a strictly practical standpoint, the social-improvement crusader “should” be persuaded by that argument. All too often, he reverts to the “But leaving it legal would condone it” position. That’s a tougher nut to crack. At present I have no suggestions for cracking it.

     Perhaps we might consider bringing back dueling under the Toth Convention:

• The challenged party gets the choice of weapons.
• The duel must be refereed by an impartial individual.
• It must take place in the pre-dawn hours, when there’s little light.
• Challenger and challenged must both bring seconds to act as witnesses.
• The deciding rule of the contest must be agreed upon: first blood or incapacity?

     Under that convention, the infliction of death, even if unintentional, is considered shameful and subjects the offender to ostracism.

     I know the idea will horrify many. After all, we’re civilized now. We abhor violence, especially when we’re its target. But the prospect of being challenged and compelled to stake one’s blood, if not his life, on his words or deeds would inhibit quite a lot of bad behavior. The question is whether we could tolerate that manner of enforcement.

     That question is troublesome. At present we don’t even tolerate police violence very well. But the correlation between the end of the “nightstick era” and the explosion of street violence suggests that that might have been a wrong turning. Upon which note I believe I shall leave the field to my Gentle Readers.