Tuesday, April 30, 2013

Harming Society

I began this essay some time ago, and left it unfinished for quite a while. I have only recently returned to the subject and completed it. However, I did not find it worthwhile to go back and rewrite the beginning to reflect the amount of time that has passed, so when the opening speaks of "recent" events, please realize they were actually several weeks, even months, ago
.
I have recently engaged in a lengthy debate1, and as I read the responses, I realized in a way, I had allowed myself to engage in the wrong argument. It was hard not to do so, as I strongly disagreed with the conclusions, not to mention having, as they say, a "dog in the fight", as the laws in questions had resulted in lots of personal discomfort, inconvenience, physical pain and generally humiliating treatment. However, I should not have responded as I did, since the debate in which I engaged was actually distracting both parties from the true issue. It was as if I had a cold and someone suggested horseradish as a cure since it heated the blood, and I responded by arguing that it actually heated the bile. I am sure there are those who could debate such topics ad nauseam, but the debate would miss the key point, that both answers are based on an incorrect understanding of medicine and physiology. Similarly, when CW and I debated the harm done by drug use, and whether or not banning drugs somehow protected society, I was allowing myself to miss the main point. Oh, I did mention a few times that the question of protecting society was an invalid one, but again and again, I allowed myself to argue that point, thus, despite my denials, making it seem that protecting society was a valid justification for such laws. And since I did create a great deal of confusion in so doing, I decided I should explain precisely why such a debate is both invalid and a distraction from the true argument that should have taken place. And fortunately, in so doing, I can speak in largely abstract terms, or at least using much less contentious examples, so the drug debate does not need to rear its ugly head once more. (Nor does the prostitution argument, which seems to assume quite similar form.)

In a way, I suppose this is simply a restatement of what I argued in "Hard Cases Make Bad Law", but I fear I did a poor job of making may argument clear in that essay -- sure proof that volume of writing does not necessarily improve clarity -- and so I will try again, taking a slightly different approach, and see if I can make myself as clear as possible. (And also remind myself not to debate points which I should know are not germane, regardless of my personal involvement.)

Actually, there are several principles involved here. First, what makes a valid law. Second, who is a valid individual as far as law is concerned. (The reason I describe it thus will be clear as we proceed through the first topic.) Third, what methods can be taken to resolve issues that fall outside the realm of proper laws. And finally, why we need to concern ourselves with these issues, what harm will come from adopting a pragmatic approach and ignoring these general principles of governance3. In some ways it is all ground I have covered before4, sometimes covering all of these topics in a single essay, other times covering one, or maybe two, of these matters in depth5. However, I will try in this argument to take a somewhat different approach, hopefully one which is a little less involved and needlessly complicated.  But, I suppose it remains to be seen whether or not I succeed. And so let us skip over any additional introduction and dive right into our topic, beginning with the nature and form of valid laws.

In both "Symmetry and Asymmetry in Government" and "Negative and Positive Rights"6, I argued at some length for a very precise and limited definition of individual rights and argued that government should limits itself to defending those rights against violation by fellow citizens or external forces.In the essays cited I provided a detailed justification for so dividing the laws, but for the moment, let us forget about such arguments, and, instead look at the ways in which i have tried to divide valid and invalid laws, as that is, for our purposes, of much more immediate interest.

I have tried to define the two types of laws, the valid and the invalid, in any number of ways, and yet each effort has ended up producing attempted rebuttals based upon the descriptions chosen, sometimes using rather shoddy analogies or metaphors, but often based upon the weaknesses of the terms chosen. For example, we can describe laws as "protective" and "normative", that is, those laws which defend individual liberties, and those which prescribe certain types of actions. Or, as I did in the cited essays, as "positive" and "negative", that is those which require only abstaining from action versus those that require action. Or we can use the form proposed in another essay and describe them as "symmetrical" and "asymmetrical", that is those which apply in a uniform way, and those that do not. However, in each case, one can adopt a perspective which will make invalid laws fall into the valid category and vice versa.

For example, when I say that invalid laws often demand an individual refrain from acting on his own wishes, someone will argue that laws prohibiting murder or theft also require an individual to refrain from acting on his desires. Or, when I suggest that only negative laws are valid, someone will argue that requiring an individual abstain from drugs or prostitution is also negative. Similarly, they will also point out such laws are symmetrical, as they apply universally as well. And thus, no matter how I try to codify laws -- outside of an explicit enumeration of the valid rights law can protect -- the definition is subject to misunderstanding, depending upon how one chooses to see certain questions.

In the end, there really is no way in which to define valid and invalid laws without misunderstanding, though the method which seems to produce the least confusion seems to be to use the rather wordy definition: Laws are valid, if and only if, they serve to protect an individual against force, theft or fraud. Or, perhaps the alternate version: Laws are valid if and only if they protect an individual's rights to life, liberty and property. Both still leave considerable room for those who wish to do so to argue in favor of their favorite regulation, but, as such definitions go, these two seem the least prone to widespread confusion. Of course, justifying them is another matter, that takes quite a bit of discussion, but at least once they have been justified they are less prone to confusion than any other choices.

I mention all of this because, in most cases, the laws which inspired this essay, laws intended to protect individuals from their own bad choices, or in an alternate version to protect society from bad choices, do not rest upon an argument against my definition of the purpose of the law. Those supporting such laws often agree the law exists to protect us, rather than make us better7. The difference between us is not on that fundamental level, we both say we oppose social engineering by the state, as well as activist, intrusive government. In essence, we both claim to promote a government which is interested solely in protecting citizens. Thus, our disagreement rest not on the fundamental understanding of the role of government, instead it rests upon two other disagreements. Those are the question of what sort of protection the law can provide, and who the law is intended to protect. There are a few other arguments that arise form time to time, such as the argument from necessity - -that is, if the government does not do something that it won't be done -- or even the pragmatic position that, while they violate the basic principles of our state, they are sufficiently beneficial that it is worth the inconsistency8. But those latter arguments are much less common, and can be ignored for the moment. We shall come back to them later in this work. For now, let us look at the first two arguments, the two that effectively accept the same assumptions I do, but take a very different approach to applying them.

In effect, this boils down to two arguments, which strangely enough match the first two questions I listed above. First, there is the argument that such laws protect individual rights, just rights beyond the basic life, liberty and property, matching my question of what is a valid law. Second, there is the argument that the government must not just protect individuals and their rights, but must also protect society, which matches my question of who the government should protect. The remaining two questions above -- what to do about issues falling outside the scope of government, and why we should or should not be concerned about inconsistent applications of these principles -- relate mostly to the remaining two questions, the ones I have put off for now. We shall look at those near the end of the essay.

Let us look first at the argument for a more expansive view of rights, or perhaps a broader definition of harm. This argument is usually offered in a relatively vague form, such as arguing that individuals are harmed by being forced to watch prostitutes having sex in public places or that the use and sale of drugs cause harm which violates individual rights. And that is precisely the problem. Rights, in their traditional form, the rights to life, liberty and property, are essential to survival, and are easily defined. The laws which protect them are likewise easily defined. Once we begin to move beyond these basic and essential rights, problems arise, and we end up with government either exercising unlimited power, or enforcing vague notions with unpredictable and chaotic results.

The basic problem is that there is no such thing as "line drawing". Though everyone hates to hear "slippery slope" arguments, they come up so often because they are true.It may seem unobjectionable to prevent acts which offend almost everyone, such as prohibiting prostitution, or public nudity, but the principles established in so doing create dangerous precedents. If the law can ban acts because they offend the majority, or because the majority considers them harmful to participants, then there is no effective limit to what the government can do. And once a principle is established, it will eventually run its course and reach the logical conclusions. It may take time, but it will, eventually, lead to all those outcomes the proponents find unthinkable.

And the reason is simple. While many may claim such laws are just common sense and to not establish a precedent, every law does. For example, if we ban some public display because it is offensive, what is to stop someone else from using the same justification to stop another act, say public prayer? The argument is simple. "You banned X because it was offensive, so why can't we ban Y for the same reason?" And no counter argument will stand. "Because banning X is common sense, but Y is not" will meet with the argument that one is saying only his values matter, others do not. And the same with the argument that a majority supported one ban but not another. In that case, the argument will hinge on why minorities are not given a say.  Regardless of claims about line drawing and common sense, the fact remains that every law establishes a precedent, and that in any argument the one who most consistently app;lies that principle will win. Thus, whatever laws are created, they will, eventually, be used to their fullest extent, reaching their logical conclusion9.

That argument alone should make unnecessary any rebuttal of the other arguments, but since many fail to see how this argument applies, I will address them as well, just to be certain that my point is made clear.

The other common argument, that society has rights and needs protection as well, can be seen several different ways. We can ask ourselves what justification there is for assigning rights to society, or who would decide how those rights are to be enforced, or even who would decide when society's rights have been violated. Or, to look at it from the opposite direction, we can adopt the approach taken in our first argument and ask quite simply, what the logical outcome would be of assigning rights to society. Regardless of the approach taken, it is clear that this position results in a number of undesirable outcomes.

Quite simply put, society is a fiction, or, to be more precise, society is meaningful if use din the sense of a group of individuals with individual goals and desires but sharing, to some degree, a common set of cultural beliefs. However, when we start speaking of society in terms of a corporate entity, when we assign it goals, values, or interests, then we have crossed the line and entered into fiction. Society, being nothing but a group of individuals, has no interests, no goals, and thus cannot be protected, except in the sense that the individuals comprising it are being protected. To create a pseudo-Hegelian spirit of society, which can be injured and which has desires independent of the individuals is nonsense.

Of course, some will say I am making a mistake and society's interests are those of the individuals, so it is simply a shorthand way of saying we are protecting the individuals making up society. But there is one problem. if society's interests are the interests of the individuals comprising society, then there would be no call to make laws restricting them from making the choices they wish. If their interest is society's interest, then how can stopping them from pursuing their desires be protecting society, if society is nothing but their desires? It is the same problem I have with those claiming to support individual freedoms yet promoting the war on drugs, if we support the right of individuals to pursue their wishes, how can we then punish them for pursuing their wishes, provided they violate no one else's rights?

And the response is, as always, the response which troubles me so10. It comes in many forms, and has many guises, but in the end it boils down to that same old arrogant claim, "they don't know what is good for them". The modern governmental version of the "white man's burden", call it the "wise bureaucrat's burden", or on the other end of the spectrum "the social conservative's burden". Reduced to its most basic form, the claim is always the same, that most people or some people simply don't know what is good for them, and must be told what to do -- no, let us not use euphemisms -- FORCED to do the right thing under threat of jailing or worse. At least the proponents of "rights of society" tend to answer a few of the questions better than most.

Often, when I ask those on the left (or the right) why the state must save people from making what some think are "bad decisions" the answer is vague. "For their own good." Think about it, you must be fined and jailed for your own good, lest you visit a prostitute or use drugs, take a job at a salary that is "too low" or fail to buy health insurance. The same people who mock the inquisition for killing to save souls are perfectly happy to make criminals of individuals, ruin their lives and permanently consign them to the underclass because they might make the wrong choice.

Those who espouse the rights of society are a bit better. They argue that we must stop people from making bad choices because it will harm society. It is still not clear precisely how private drug use or solicitation of prostitutes -- and notice it is not just streetwalkers, but all prostitutes they ban, so it is not just the public nuisance aspect -- will destroy society. Especially since both continue despite the laws and society continues to function. But at least it is better to claim we are somehow saving "society", that is protecting the majority from the bad choices of a minority, rather than claiming we are saving people from themselves.

But there is a problem there as well. What is "society"? How do we determine what is the interest of society? How does it differ from simple brute majority rule? And if it is not the will of the majority, then who gets to define what is society's interest? And that is where this whole thing breaks down, and brings about pretty undesirable implications, making it differ in practice very little from liberalism's desire to save us from ourselves. You see, either society is defined by simple majority vote, which means rights are meaningless, and nothing matters but the desire of the masses, or else the interest of society is defined, as are the "right choices" of liberalism, by the values of a select group, who appoint themselves to that role. In short, either we introduce mob rule, or force the values of an elite upon the bulk of society. In either case, we are not discussing a society compatible with individual rights, but another version of the modern omnipotent state.

I was going to discuss her the other alternatives, those who argue that we need not worry about principles, that we need only employ common sense, that we can create ad hoc rules as we wish, and so on, but I think I have addressed those arguments more than once in the course of this discussion, so it seems pointless to return to them again. Much as I have enjoyed pointing out the failings of pragmatism and the advocates of "common sense" in the past11, it would be overkill to visit that well once more. I have added copious footnotes to this essay, and anyone curious about my general arguments can find plenty of material there. And so, instead of dwelling on that topic, let us simply proceed tot he final question, how those who see something they think to be damaging can address it when it is of such a nature that it falls outside the proper role of government.

The answer, I am afraid, is not going to please many, especially in our age. It seems since at least the 1960's, if not before, we developed something of an immature fixation with dramatic gestures, with grand battles, with epic struggles, and have come to believe if we are not doing something which will immediately solve a problem completely, then we are doing nothing12. And, sadly, our politicians are worse about this than most. Responding to popular pressures to "do something"13, whenever a problem arises, politicians have come to abhor any solution which is slow, or partial, or leaves some of the problem untouched. And yet, if we look at most our lives, outside of the realm of politics, we will realize, that most of life is solved by solutions which are slow, piecemeal, and incomplete. Do you leave college and refuse any job that is not your "dream job"? No, you work your way up the ladder, even taking jobs far from ideal to get experience, or just pay the bills. Do you wait until you meet someone you are certain is perfect and immediately marry them? No, you date several people to find out more about them, and also to learn what you really want in a mate. Do you remain homeless until you can buy your perfect house? Without transport until you can get your perfect car? If your doctor cannot promise a cure with 100% success do you refuse treatment? And on and on. I could offer thousands of examples. Real life is all about slow, methodical solutions. And yet, when one proposes them in response to social or political problems, they are seen as something akin to defeat. It is madness, and yet it is everywhere in our modern society.

But despite that, I am going to offer just such a solution, the same one I offered before in a few essays14. The solution is quite simple, and obvious too, but it is so contrary to what we have come to accept as the norm for solving problems that it is ignored by not just liberals but most conservatives as well. Which only serves to show how successful the liberal takeover of our society has been.

The answer, quite simply, for eliminating behaviors one thinks are damaging, but which do not violate the rights of another individual, and thus are not the proper focus for government action, is to convince others to change their ways. I know, it is totally contrary to our beliefs, to say we should stop drugs not by jailing or government programs or any other state intervention, but simply by persuasion, and yet, it makes sense. If the state exists only to protect rights, then what other answer is there?

Allow me to offer an analogy. At one time, many states believed it was their role to either force individuals to practice the state religion, or at least to stop practicing certain banned faiths. Even today some states believe this. To them, it would seem madness to say religious matters should be resolved by persuasion. They would ask how we could let others persist in error, damaging society, harming the true faith. And yet, to us that sounds quite wrong. Who is not to say, one day, we will not find the idea of jailing drug users, prostitutes and others equally absurd? Simply because we find it "unthinkable" today is no measure of the validity of a position.

Having made my case against government involvement, I suppose there is little argument left to make in favor of my position, but I will, before I go, present two final arguments, or rather, I will debunk two arguments offered against such solutions.

First, we have the argument that such a solution will allow individuals to continue using drugs or seeking prostitutes or whatever, without anyone stopping them, or, even if some are persuaded, others will persist in error. The simple rebuttal to such a claim is to look around us. Even with rather draconian laws, even with decades of enforcement, people still persist in using drugs and seeking prostitutes. So, if persuasion means some will persist in what some believe to be error, how will it be any different from what we have now? The truth is, if you try to prevent people from doing what they want, some will continue to do it despite your most strenuous efforts. In some cases, such as protecting rights, it may be important enough that we must persevere, but in others, such as effort to "defend society" or protect people from themselves, perhaps the prize is not worth the cost.

The other argument is that foolish claim that stopping now will be "giving up" or will be seen as endorsing drug use. Neither claim is worth much. First, being a "quitter" when one is wrong is a virtue, not a fault. I had a girlfriend in high school whose father accidentally drank a glass of bleach, thinking it was water. If he had picked it up and noticed the odor, would he be a "quitter" for putting it down? Should he have chugged it anyway, so as not to "quit"? Of course not! And that is the absurdity of claims about being a quitter. Second, stopping the war on drugs is no more endorsing drugs than ending Prohibition endorsed alcohol. Instead, it is recognizing that the function of government does not extend to these matters. Rather than seeing it as endorsing drugs, why not see it as endorsing individual liberty? It could be just as easily seen either way. That those who put forth this argument choose their particular view says more about their desire to keep the war on drugs going than anything else.

Obviously, I have thought about this a lot, and I am afraid in places I let my rather strong feelings peek through more than I would like. So it should be obvious I could continue another few dozen paragraphs or more. But I will spare you that. I think I have made my case as well as I can right now, and have presented all my most significant arguments, and so, rather than wear out my welcome -- assuming I have not already -- I will simply say farewell, asking that you simply give some thought to what I have said and not just reject it out of hand as seems to happen far too often when these topics are mentioned.

========================================================

1. See the notes following "The "Liberal Bubble" Becomes Universal" -- though the topic argued in the comments more closely relates to "Addicts?", "Guns and Drugs" and "Missionary Zeal and Human Discord" -- as well as a similar debate in "The Sexual Revolution and Prostitution", "Some Responses" and "Hard Cases Make Bad Law".

2. And to a lesser extent in "A Small Clarification" and "Some Responses".

3. To spare myself having to go through the many earlier arguments I have made against pragmatism and supposed "common sense" exceptions, I will tell any interested readers they can be found in my essays "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact" A few of the arguments from these prior essays will be necessary in examining this topic and so will be reproduced, the rest I leave for curious readers to find in these earlier works.

4. As I mentioned in several previous essays, I had planned to write about what is and is not a valid law, and so, in a way, this essay actually saves me work, as I need to cover that very topic in order to discuss this larger matter.

5. For example "The Case for Small Government", "The Consequences of Bad Laws", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "A New Look At Intervention", "The Basics", "Who Does It Harm?", "It Doesn't Matter to ME...", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"", "The Problem of Pornography", "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"", "The Danger Inherent in Banning "Bad Ideas"", "In Defense of Discrimination", "The Inherent Disappointment of Authoritarianism", "The Threat of Perfection", "Utopianism and Disaster", "The Right Way", "Doing Something", "Tyranny Without Tyrants", "Volunteer Fireman, Barn Raisings and Government",  ""...Then Who Would Do it?" ", "Collective Action and Government" and "Why Must The Government Do It? Part I" and, most recently, "In Loco Parentis".

6. I made similar arguments in "Prelude", "Tools", "My Vision of Government", "My Vision of Government Part II", , "An Analogy For Government", "A Simple Proposal", "Man's Nature and Government", "Why Freedom Is Essential" and "A Right Is A Right", as well as "The Case for Small Government" and "Competition". I also discussed the topic to a lesser degree in "The State of Nature and Man's Rights", "The Benefit of Society", "In Praise of Contracts" and "A Beast's Life".  In addition to that, I have a half-finished essay which walks through the basic reasons individuals would choose to live in a society and the reasons for the laws they would and would not allow, but I don't think it will be published for another week or more. Finally, there is this regularly quoted description of the basic self-interested motives that go into forming laws, drawn from my essay "A Rational Approach to Punishment" :
Obviously, like anyone else, I would find ideal a system which allowed me to do whatever I wanted without consequence, while providing enough punishment to everyone else that ti prevents them from harming me. Of course, no one would agree to allow me that freedom, and I would allow it to no one. So, the only choice which would be acceptable to all is a system where punishment is applied uniformly.

The next question is whether the system will punish everyone or forgive everyone. The forgiving system will allow me any crime, but will allow the same to everyone else. As I expect to benefit less from my own freedom than I would suffer from the freedom allowed others, it makes sense to opt for the system that punishes everyone. The loss from giving up the freedom to commit crime is small, while the protection is great.

Finally, we need to ask how harshly crime should be punished. And again, the logic is the same. I can benefit from weak punishment, but the potential harm is much greater. As I am unlikely to commit a crime, but I will suffer if even a small percentage of others do, it makes sense to punish crimes harshly enough that almost everyone is deterred from committing them.
which can be found quoted in "Hard Cases Make Bad Law", "The Case for Small Government", and several other essays.

7. Of course, there are those who openly promote such measures as means to improve citizens, admitting they believe the purpose of government is to encourage people to do the right thing. I have rebutted those theories in a number of essays, such as "The Right Way" , "The Danger Inherent in Banning "Bad Ideas"", "In Defense of Discrimination", "The Single Greatest Weakness",  "No Dividing Line", "The Consequences of Bad Laws", "Questions of Law and Questions of Fact", " In Loco Parentis" and others. I will not be addressing those arguments here. This essay is intended to address the others, those who claim they do not believe in using government to perform social engineering, but continue to support measures such as the war on drugs, bans on prostitution and pornography and the rest on the basis of protecting individuals, or perhaps society. It is this position which I hope to address in this essay.

8. These two arguments are often hard to distinguish, and many people make both, so it is frequently a moot point which argument is being made. As such, I will deal with both together when we finally address them.

9. This point will be made later in the essay itself, but for those who are already asking how we can then control these behaviors, I would recommend "Shame and Behavior", "Our Rude Behavior", "Social Controls", "Volunteer Fireman, Barn Raisings and Government" and "Government Versus Culture - A Forgotten Distinction". The argument itself will appear later in the essay.

10. See  "Liberalism, Its Origins and Consequences", also my earlier essays  "The Essence of Liberalism", "Arrogance and Gun Control", "Our View of Our Fellow Citizens", "Those Other People", "Seeing People As Stupid" and "Man's Nature and Government".


11. See the essays cited in footnote 3, above.

12. See "All Life in a Day, or, How Our Mistaken View of History Distorts Our Understanding of Events", "Catastrophic Thinking, The Political, Economic and Social Impact of Seeing History in the Superlative", "Utopianism and Disaster", "The Threat of Perfection""Cranky Old Man?", "Faux "Maturity"",  "Deadly Cynicism", "Juvenile Intellectuals", "Trophy Spouses", "O Tempora! O Mores!, or, The High Cost of Supposed Freedom" and "Self-Serving Cynicism and Our Cultural Immaturity".

13. See  "Doing Something"""Doing Something" Revisited",  "Doing Something Revisited, Again", "Action and Inaction", "Don't Blame the Politicians""In Loco Parentis", "Hard Cases Make Bad Law and "The Single Greatest Weakness" .

14. Cf  "In Defense of Discrimination", "A Statute of Limitations for Race", "How to Handle Idiots", "Back Again", "Best of the Web gets It Very, Very Wrong", "Private Versus Public Racism", "The Costs of Understanding", "Musings on Discrimination"  "The Danger Inherent in Banning "Bad Ideas""The Inherent Disappointment of Authoritarianism",  "Tyranny Without Tyrants", "Some Thoughts on "Summerhill"", "In Defense of Zero Tolerance, or, And Examination of Law, Common Sense and Consistency", "In Praise of Slow Changes", "Conservatism, Incremental Change and Federalism"  and  "Traffic Lights, Predictability and Conservatism" . See also -- citing many of them for the second or third time --   "Volunteer Fireman, Barn Raisings and Government",  ""...Then Who Would Do it?" ", "Collective Action and Government", "Government Versus Culture - A Forgotten Distinction" and "Why Must The Government Do It? Part I".


All Hail the Victim

Though the title suggests an article that conservative readers would hail, I am afraid the actual article is far more likely to garner angry responses than praise. Not for the conclusion, which some may actually find agreeable, but for many of the assertions I am about to make. While they are provably true, in fact can be seen around us every day, they are facts many deny despite the evidence. Thus, I am afraid their inclusion will make many dismiss this entire article, despite the fact that the conclusion is actually something said by any number of conservatives. Or one of them. There are, in reality, two points to this essay, and the second, I am afraid, may be just as ill received as the rest of it.

But enough postponing the inevitable. Knowing I will get some angry responses, at the very least quite a bit of disagreement, let me begin.

Let us begin with a simple assertion, our legal system operates in a rather strange way, at least in some areas. In particular, the laws concerning drugs seem to be out of kilter, at least when it comes to users. (We can discuss the way sellers are handled in another essay, as at the lower end of the sale spectrum the laws are rather peculiar as well.)

The arguments offered for drug laws are, as I understand them, that people should be prevented from using drugs because doing so harms them and others, or perhaps society. I admit, I do not follow the logic that says it makes sense to jail someone and ruin their life to keep them from doing drugs and ruining their lives -- sounds a bit like using deadly force to prevent suicide -- but I did not say I understand the laws, just that this is the argument for them as far as I follow it.

Be that as it may, given that justification, the way we handle arrests and trials of drug users makes almost no sense.

Before moving on, let me make a statement some will find incorrect. Since it is going to elicit strong denials, wait until I reach the end before objecting, as I intend to offer some strong proof from everyday life.

Much as we like to deny it, much as the law, and its justification, argue otherwise, drug user exist who use drugs, casually or regularly, without ruining their lives or those around them1. Just like drinking, which can degenerate into alcoholism and damage one's life, drug use allows for a range of cases, and there are many who can use drugs casually without harm. If you deny this, then explain the many arrests of successful individuals, professionals, pillars of society, and the like, for drug possession, who, when arrested, are found to have given no sign to their friends and family? If they can maintain their jobs to give no sign, if they can maintain their careers, and no one knows about their drug use, then how is it ruining their lives? Well, because we arrest them, pillory them in public and destroy their names, I suppose. But if there were no laws to do that, drugs would have not ruined their lives. Of course, there are stories that go the other way, but, as I said, that is true of all human passions. A hearty appetite can become gluttony and heart disease and obesity, an attraction to the opposite sex can become rampant promiscuity, illegitimate children, ruined marriages, disease and worse,  a love of wine or beer can become alcoholism, liver disease, erratic behavior and so so on. The list is endless, and all could be called "addictions", and many have in our addiciton-happy society2, but in truth all are just the tail end of the bell curve of normal possible behavior3. And drug use is no different. Some will go to extremes, it is inevitable, and some will abstain, and others will fall in between. But we deny the in-between exist in this case4.

And here comes the part that is likely to generate more objections than the rest. I am not just making the usual NORML case here, arguing we should be able to smoke marijuana. I am speaking of all drugs. Despite the Hollywood scare myth of instant addiction5, the truth is drugs do not develop an instant physical addiction. Doubt me? Then why is not everyone given a ten day prescription for percocet out on the street scrounging for a fix? Because opiates take time to develop their physical addiction. Granted, the addiction element makes opiates the least likely drugs of casual abuse, but then again Rush Limbaugh showed few signs of ruining his life until the law stepped in to do it, so it is obvious casual use can be maintained6. And despite our mockery of Hollywood and entertainment in general, if drug use is as common there a suggested, it shows just how much can be achieved, as making even a bad movie is complex and taxing, and so if drugs users can pull that off on a regular basis, then it is another sign drug use can be maintained alongside a productive life.

Some will now object that perhaps some individuals can maintain a normal work life, and hide their addiction from their families and friends, but they are still suffering. To which I reply, throwing them in jail will improve this? And, more seriously, how do you know? The argument against drugs is that they ruin lives, not that they leave us emotionally hollow. Many things leave us emotionally hollow. Breakups with lovers, the death of friends, bad entertainment, boredom, all leave some emotional pain. Should we ban them all? The argument is that drugs ruin lives. Ergo, if there are people using drugs while holding down jobs and not harming those around them, they do not meet the argument justifying the ban.

Which brings me to my main point, the way we handle drug users after they are arrested, and the two things which it says about our society (one of which will probably be accepted by most readers).

I mentioned those who both used drugs and led a normal life for this very reason, as it is in their case that the absurdity of our approach is most evident, and thus, much as I knew mentioning them would raise some hackles, I had to do so, as it is essential to my argument, to show that those who say they use drugs but are not ruining their lives are not "in denial" or deluded, but are telling the truth, unpopular as it might be.

You see, when arrested, drug users are, for the most part7, given two choices, they can go through the whole trial and risk fines and jail, or they can claim they are "addicts", they want treatment8 and allow themselves to be treated as weak and ill, and avoid most threats of jail.

And that is why I mentioned those who function well while using drugs. When arrested, these individuals are faced with a strange situation. They are basically not suffering because of drugs, they are suffering only because drugs are illegal. Were there no drug laws, their life would be proceeding smoothly. However, because drugs are illegal, and they were caught, they now must decide what to say to the courts. They can be honest, say they use drugs, but otherwise lead ordinary lives, and as a result end up suffering the harshest legal penalties. Or they can plead victimhood, claim drugs are ruining their lives, insist they want treatment, that they cannot stop using drugs, and so on and enjoy lenient treatment. In short, they can tell the truth and suffer, or lie, pretend to be a victim, and be rewarded9.

As I said before, this strikes me as most peculiar. After all, we ban drugs to keep people from harming themselves, yet, when we find one who is using drugs yet suffering no harm, we insist he claim he IS being harmed, or else we punish him more heavily. As I said, I actually find the whole system a bit odd, as it seems strange to jail someone to protect him from harm, as time in jail, and the subsequent stigma, seems far more damaging than the harm drugs do to many, but we will leave that alone for now. Instead, let us look at the other peculiarity, the insistence that those arrested make the pro forma confession of victimhood, or suffer the consequences10.

Now, in part, this is the result of impersonal forces. The war on drugs is inherently schizophrenic, as we want to treat any contact with drugs as a crime, yet we don't want to jail our children should they stray, nor do we want to punish those we think of as "addicts", subject to forces beyond their control11. And so, where the laws first began in a more moralizing age as way to punish those who were degenerate enough to use drugs (and in that day there was much less chance it would include the friends, family and children of those making the laws), as time went on, we added provisions for treatment, for trying to rehabilitate, and so the law took on a strange appearance, where drug use was a crime, but one punished with therapy.

And, because of this weird division between punishing and  treating, the courts saw many odd outcomes, where the same crime could be punished by a few months in jail, or similar time spent with therapists. However, to qualify for the therapy option, one had to first say he had a problem, and was seeking therapy. If he did not, then he foreclosed that option on his own. And so, in part, the system itself simply made such pleas mandatory, by allowing those who claimed to be a victim an alternate penalty which most find much more pleasant.

But there are two other factors in play as well. First, there is our modern tendency to show excessive sympathy for victims, especially the legal system's tendency to bend over backwards for those who were somehow victimized by life itself, and, the flip side of the same, our tendency to feel little kindness toward those we want to see as victims who deny they are any such thing12. Second, there is the very human trait which makes us feel more well disposed toward those who agree with us, and less toward those who challenge our beliefs. Both may play but a small role, but needless to say, I believe both do have a part in this strange treatment.

It is no secret that much of the penal system, especially where it overlaps with social services in one way or another, is somewhat left leaning. I grant individual parole officers and the like may be as hard as possible, and may hold conservative views. I also grant that a lot of the lack of oversight and simple negligence in many systems is mostly due to lack of staff and budget (along with institutional indifference), more than any political agenda. However, once you leave behind the front line staff, the agenda of most penal systems has at least some elements of left leaning thought. I can think of no penal system in the US today which describes its function entirely as establishing a place to keep criminals away from society, while hopefully providing a deterrent13. Every system, one degree or another adopts a "rehabilitative" role, and, as with every social services department in the nation, such roles tend to attract, in general if not every individual case14, those leaning toward the left. Given this focus on rehabilitation, it is obvious that to some degree "victimhood" would be prominent, as those seeking to "reform" tend to blame "the system", circumstances and outside influences, see the potential good in everyone, and try to say that "but for the grace of God...". So, it is inevitable, I think, that the drug system would seek to see every user as a victim, just waiting to be healed, and establish a system slanted in this direction.

But, as with most such systems, it is rough going should you swim against the current. If you admit you chose your path willingly, that it is not something you want to renounce, not something of which you want to be cured, the rehabilitation branch has no idea how to handle you and, so, as a consequence, you end up falling through the cracks into the pre-existing punishment system, much to your detriment. Thus, as with so much in our present society, there are incentives to portray oneself as a victim15. And this is the point on which I think some conservatives would agree with me. There is something wrong with a system where, admitting one chose his course results in punishment, while saying everything was beyond his control ends up paying dividends.

But there is also another side of this, and one that many may not quite see, but it is there nonetheless. When people wish to help, and wish to see others as victims, when those potential victims deny they are such, when they refuse to say drugs were demons that took over their souls and made them do evil, those who hold to such a worldview are often upset at such stubbornness. At first they blame "denial" and call those who deny their beliefs deluded, but, in many cases, they quickly become upset at those who deny their beliefs, and thus, consciously or not, go harder on those who refuse to play along than those who do.

And in the end, that is why it is such a strange system we have, where saying you are a victim pays off. Partly it is because the system grew to favor those who played victim, but it also is because those who manage the system know how to treat victims, but not how to treat those who deny their victimhood. And, in addition, those who deny they are victims are, in their statements, denying the foundation of the system, and thus tend to produce less than happy reactions. And so, strange as it may seem, those who say drugs are not ruining their lives, and can show it to be true, have the law treat them more harshly than those who say the opposite. And thus, laws intended to stop people from ruining their lives treat more harshly those whose lives are less harmed, and is more lenient with those who claim more harm from drugs. Which seems a peculiar set of incentives, to say the least.

================================================================

1. Some may argue it "just hasn't happened yet", but if we allow that a mere assertion without evidence is enough to make a case, I could argue eating carrots kills you, and that those alive after eating them just haven't died yet. It reminds me of those alcoholics who deny one can become a moderate drinker after recovering from alcoholism, who, when confronted with people who have done just that, claim the drinkers are "just in denial" and on the verge of a binge, even if they have been drinking in a controlled way for decades.

2. We have a sad tendency to call any uncontrolled behavior an "addiction". It started as an analogy to the actual physical withdrawal syndromes of opiates, and to a lesser degree alcohol, nicotine and a few others, but we forgot it was a metaphor and came to believe all are somehow physical diseases. But that is a topic for another post. (Or a previous one, see "Guns and Drugs", "In Loco Parentis", "Some Stray Thoughts on Drug Laws", "Gay Two Ways" and "One In...".)

3. Again, this is a contentious position, that our supposed "addictions" are just a predictable extreme of possible behaviors and the result of a choice on the part of individuals. However, I do hold just that. Then again, I am aware this is very unpopular position, and so I doubt I will persuade many. To see my arguments, and my equally unpopular position on mental illness, see "The Politics of Psychiatry" and "Mental Illness" .

4. We are not so insistent in other cases, though some do the same for alcohol, arguing any moderate drinking is just the calm before the storm of alcoholism. But those two cases seem to be the only ones where we imagine there is no such thing as moderate use.

5. Yes, addicts speak sometimes of "that first hit" and wanting it immediately, but that is a very different thing than real addiction. I may have seen some girl and known at first glance I wanted to be with her, but that does not mean I was addicted, just infatuated. And many drug users are in a similar boat. Drugs feel good, and so they want more. Many, as their life histories suggest, lack self control, and so follow that good feeling too far. That is not addiction, that is bad judgment. It is unpopular to say so, "blaming the victim" and all that, but being politically or personally unacceptable doe snot make something false.

6. Rush may be a bad example, as it appears he may have been escalating his use quite considerably and might have been heading for problem. Still, there really was no sign of his life falling apart until the law got involved, so even with heavy use it appears some individuals can cope pretty well.

7. Things are somewhat different in a number of cases. Repeated arrests tend to get one dumped in the "incorrigible addict" category. So does being from the urban lower class (black or white) and getting arrested with heroin or freebase/crack cocaine. And sometimes just getting the wrong police officer, prosecutor or judge. However, for the most part, even the poor, are allowed to enter into the system I am to describe.

8. This may be why poor individuals are kept out of the treatment path, since the state has to pay for their treatment. With slots in drug programs overbooked as it is, it is difficult to put every individual arrested into the system, since odds are good he will be arrested again, or even die of old age, before a slot opens up for him. Thus, though it is a bit self-serving, those for whom there are no public treatment options available are often steered away from asking for such. (Again, this varies from city to city, state to state, individual to individual. But in my experience, poor, urban individuals -- white and black -- tend to be pushed into the punishment track, but then given quite lenient penalties, while middle and upper class, especially kids and professionals, tend to be slotted for treatment, which, ironically, is more costly than a fine, and lasts longer than most probation.)

9. The young have one other option. They can claim this is the first time they tried drugs, or that it is one of the first. They can plead that they were "experimenting" and hope to get off even more lightly. Some may still end up in mandatory treatment, but for the most part, youthful offenders who claim they tried drugs and didn't like them can con judges as they do their parents, and get away with the lightest penalty possible. Of course, should they be arrested again, they will then be forced into the normal plea of victimhood, but for the first arrest they have this additional choice.

10. I admit, not every system works in precisely this way, nor is every judge, every prosecutor, every court, every hearing officer and so on to be painted with the same brush. However, from my own experience, as a law student, as the son of a cop, as one who knows many who used drugs, and the stories I have heard from both my friends and family and my father's friends in various police forces, this description is not that different from the way many court systems work. I am happy to hear from those who object to my description, but I will say in advance, I am not simply making this up, or building it on a handful of evidence, it is the outcome of a lot of (admittedly anecdotal) evidence.

11. I recall my first year criminal law course discussing drunk driving laws and discussing a similar process. At first, enraged by whatever public outrages caused the legislature to press for the first drunk driving laws, the law makers were fire and brimstone, smiting right and left, setting draconian limits on blood alcohol and massive punishments, making no exceptions. Then, as they began to realize they themselves, and those with whom they were close, often drove in a technically intoxicated state, they would raise the limits a bit, reduce the punishments, and add exceptions. But then a new outrage would press the law back toward the stringent origins. After a while of back and forth, the law finally settled down, but, as it still upset lawmakers, as well as judges, and even prosecutors, to see some individuals punished with such harsh penalties, they began to make allowances for those who "had a problem", and so there was a sort of "treatment" path added. It was not official, but if you sit in traffic courts you will see a lot of them, first time drunk drivers who bring an expensive attorney to say they are in treatment, can't control their drinking and are properly contrite. And, if you keep count, you will see they are treated much more leniently than those who lack such representation. It is not quite the same as the "treatment" path for drug users, but it definitely is very similar.

12. The latter is less well known than the former, but only because most people, when given the option of claiming victimhood and gaining advantage from doing so, are happy to oblige. It is rare for someone to deny he is a vaictim and assert his culpability, so it is rare we see how such behavior tends to rankle for those who seek to proclaim someone a victim.

13. This is how I described a purely functional penal system in my essays "Compassionate Execution", "The Death Penalty", "Sex Offender Registry", "The Illogic of Sex Offender Registries and Preventive Detention Continues, With a Technocrat Twist", "A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Not Completely One Sided", "Motives Unimportant", "Sunday Morning Talking Heads" and "Civilization and the Fear of Death".

14. Recall, I worked for two years a county department of social services, so this comes from first hand experience. It also proves that some individuals with more right leaning beliefs do sometimes take such jobs. Of course, I was an eligibility worker for food stamps, medical assistance, AFDC (as it was known at the time) and a few other minor programs (state pharmacy assistance, state daycare assistance, not a social worker, automatic benefits for SSI recipients, and so on), but I spent enough time dealing with our other branches to have a good picture of my coworkers and what they believed.


=============================================================

POSTSCRIPT

Some will argue with my contention that drug users can truly lead a normal life, especially those using opiates, but I would argue that common sense says otherwise. I know it is hard to believe, but there are people taking 100 mg or more a day of methadone, morphine or oxycodone who also lead productive lives, raise families and generally are productive members of society. They are called sufferers of chronic pain. For that matter, your humble author is an opiate addict of six years standing, currently taking 100 mg of methadone a day, but previously taking an equal amount of morphine. And no matter what many claim, there is no difference in drug effects between those suffering pain and those using drugs recreationally. We pain sufferers experience the same euphoric effects, the same withdrawal, the whole lot. So, if we can function while taking doses larger than most "addicts", then it stands to reason addicts can function as well.

The problem with the perception of drug users is mostly the result of two other factors. First, drugs are illegal, so we complicate drug users' lives, making it more likely they will go to jail at some point, making it necessary to hide their use or suffer social stigma, and also raising prices to exorbitant levels (my $5 prescription each month could net a few hundred on the street), and thus they end up spending too much, often having difficulty finding drugs and so we make their lives much more difficult, uncomfortable and fraught with danger, as well as forcing them to exist in a world populated with petty criminals and other unsavory types.

The second problem is that many drug users, especially since it is illegal, are people who have other problems. As I said in my youth (speaking of many friends) drugs don't make you crazy, but if you are already a little crazy, drugs make you more inclined to let it show. And even that is a lesser factor in the problems of many drug users than the simple fact that a lot of current drug users, abusers, addicts or what you will call them, were a mess before they ever took drugs. Their lives were already in a shambles. So, even without drugs, they likely would be living the same marginal, disordered lives. Of course, the cost of drugs, the legal problems, and the temptation to escape into a stupor rather than face problems probably made things worse, but without drugs they would have similar issues, and probably would have found another escape, be it alcohol, gambling, casual sex, shopping, religious fervor, fringe politics, daytime television, what have you. But, because we see drug addicts leading these lives, we immediately conclude drugs are the cause, rather than just one symptom of the real problem.

Of course, as I said from the start, I doubt what I said will convince many. Even if my statement is something as modest as that some people can use drugs and lead a normal life. I am hardly claiming they are harmless for everyone, or that there is no downside to drugs for many. All I am asking is to recognize the fact that drugs are used regularly by those with prescriptions, drugs no different than those sold on the street (except likely more pure), and they hold down normal jobs. But, from experience, I have found many will not even recognize this fact, coming up with strange excuses about drugs working differently for those in pain, or some other dubious assertions, all to avoid admitting that drugs are not always the epitome of evil.

It reminds me of many years ago when European medical societies were first publishing studies about the potential benefits of moderate drinking. For a long time, thanks to the strong abstinence only message pushed by AA and other groups, American medical groups were very reluctant to publish similar research, either because they agreed with the abstinence approach, because they did not wish to get involved in the inevitable fight, or because to do so would, in their mind, be "the same as endorsing drinking". And so, rather than admit the truth, they simply ignored those uncomfortable early studies. And even after they were forced to publish them, I recall they always insisted on some disclaimer elaborating at length about the harms of excessive drinking and pointing out these studies should not convince anyone to begin consuming alcohol. It was absurd. No one in his right mind would think such studies would lead to an outbreak of rampant alcoholism, but because we had spent so long believing in a single viewpoint, which allowed for no exceptions, no different views, we had to mouth all those words, as if the research was going to launch every tea totalling granny with high blood pressure on a binge of Wild Turkey and Jose Cuervo.

And drugs have become similar. I am dubious about many claims of medical marijuana, but there are some studies which suggest some mild benefits, if nothing else in relief of nausea. Yet, time and again, I have heard otherwise reasonable people, who approach all other topics with moderation, insisting all such studies are worthless, just because they cannot bear to accept the results. Similarly, I have heard people accept all my arguments about the war on drugs, how it causes violence, causes crime, causes prison crowding leading to some of our lenient sentencing problems, how it erodes rights and sets the stage for totalitarian expansions, people I know will agree to all that, yet insist we must go on, as ending the war on drugs is "equivalent to saying drugs are ok". In other words, because we have started down the wrong path, we must stick it out to the end, regardless of the losses, because to do otherwise might give the wrong message.

I don't understand it. But I recognize the mind set is out there. No, it is not responsible for all opposition to my arguments, many have substantive objections. But I know there are others, for whatever reason, who have such strong emotional reactions, that even were there no objections left, they would just be unable to give up. And so I know this is a largely futile fight. But still, it is also what I believe to be the truth, and so I must offer it up, even if it will convince few or none, and inspire little but anger. I suppose that is my compulsion.

POSTSCRIPT II

Reading this again, I see a few points where the argument for drug laws sounds a bit confused, and the choice of who to punish and to what degree is a bit convoluted. Specifically, when discussing the fact that those showing the most harm are treated most lightly I write in a slightly convoluted way. Mostly this is because I just can't quite grasp the entire concept, as jailing people to save them strikes me as as sensible as burning heretics to save them. And at least in the latter a distinction is made between saving lives and saving souls. In the case of drugs, we seem to be saying time in jail is better than even the most casual drug use, which strikes me as odd. Still, allow me to clarify my slightly convoluted statements.

If drug laws are to discourage "ruining one's life", then the punishment, as with all crimes, should be proportionate to the degree of damage one has done, in this case to the degree one has made a mess of his life. Yet, we do the opposite. Those who claim to have suffered no harm are treated most harshly, while those who claim the greatest harm to their lives -- though, admittedly only after they renounce their behavior and seek the absolution of therapy -- are treated leniently. This seems to be the opposite of what we should do to provide the incentive we claim to desire.

But, as I said, I may not be the best person to choose to try to understand the nuances of these laws, as using the law in this case at all strikes me as suspect. I know very many conservatives disagree with me, and many see the "harm to society" as justifying the laws. On the other hand, I cannot see "society", all I see are individuals, and if one does not violate the rights of others, I see no reason to invoke the law. So for me these laws are simply nonsensical. Even if we allow the law can extend beyond protecting rights, and use it to modify behavior, it strikes me as strange that we would choose to harm people to protect them from harm. As I said, jailing people, stigmatizing them and ruining their lives and reputations to prevent them from the harm drugs might do to them seems to me akin to shooting someone in the head to prevent them from committing suicide.

Monday, April 15, 2013

Two Bits of Synchronicity

I don't have any better way to describe these two events than synchronicity. Every so often, my writing and life come together in interesting ways, and so I decided to share two examples rather briefly.

The first is not so much synchronicity as the fact that others are finally recognizing something I have long mentioned. I have stated for a long time I am reluctant to give money to many charities as they take my money and, rather than using it to do good, use it to hire lobbyists to get the government to give them more of my tax money. Since I find that rather distasteful, I tend to avoid a lot of organized charities.

Today, while I was looking through Youtube for songs of my misspent youth, I saw one of those unsolicited pre-clip advertisements decrying HSUS for taking money and using it to fund pensions, pay for protection against racketeering charges and otherwise spend it on everything but local shelters. It was interesting not only because it discovered something I had been saying for quite some time (though they seemed to miss the lobbyist aspect, but they are kind of left-ish consumer group, so that isn't too surprising), but is doubly interesting as HSUS is one of those groups I have criticized most often, as they give almost nothing in actual charity, spending everything, or very close to it, on administration and lobbying. So it was nice to hear them being used as the specific target of these ads.

The second bit of synchronicity is a bit less pleasing, but more closely tied to my writing.  In "Close But No Guitar", and more recently in "If It's New, Can It Be a Cliche?", I wrote about the absurd mistaken version of the cliche phrase "mix and match", which has somehow become "mix and mash" in the popular consciousness, or at least in some subset of the same. However, never reluctant to prove illiteracy is the official language of advertising, I discovered while watching television with my son, there is now a children's game named "Mix and Mash". What is next, "Rediculous - The Game"? "Two to Tangle"? Well, at least I now know I heard it right and I was not making a mountain out of a Mohawk. 

I may have that last one wrong.

Well, a miss is as good as a mule. Six and one half dozen of the other. And all those other cliches...