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December 19, 2009

Deep thoughts (and a great title) concerning drug and vice crimes

This article available via SSRN attracted my attention based just on its title, which is "Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward a Reformation of Drug and Prostitution Regulations."  And, as this part of the abstract highlights, there are some deep thoughts behind the cool title:

This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient.  In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations.  Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”.  Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means."...  The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy.  I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.

From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion.  While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules.  This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition.  Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition.  Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.

December 19, 2009 at 12:19 PM | Permalink


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There is no such thing as an "absolutely necessary" law including the one I just stated.

Posted by: Daniel | Dec 19, 2009 9:27:37 PM

Every current and proposed statute should be proven safe and effective, or be void. Safe and effective is at the core of due process. So a law imposing the death penalty for witchcraft violates Fifth Amendment Due Process.

First, prove a harm from a crime, either physical, economic, or permanently emotional. Merely upsetting acts are protected by the First Amendment. Peeing in the street would be harmful, in generating cleanup costs, spreading disease, etc. Private prostitution produces mutual benefit, pleasure and earning. If the person objects to forced prostitution, that is covered by kidnapping and enslavement laws. Consent should remain a defense.

Second, prove that criminal sanctions reduce the rate and the cost of harm to a greater extent than the cost of enforcement, and apply the least restrictive sanction. If a torts approach can be shown to work, enable that in the statute. So if speeding must end, does a police car in the bushes reduce the average speed on the road, or does a speed camera, generating emailed fines to all speeders reduce the average speed? Prove that a reduction in the average speed results in a benefit, such as fewer accidents. Prove that the value of the accidents prevented exceeds that of the enforcement camera and that of the total of the fines collected.

Third, test each law, its enforcement methods, and unintended consequences in small jurisdictions. They apply to a state. If still effective and beneficial, then make the law federal or mandatory in every state by the usual constitutional methods.

Lastly, set out the dose-response curve. If a remedy is too small or weak, it does not work. If it is excessive, it becomes toxic. For example, I would boycott the shops on the road with the automatic speeding tickets. We want to find out that bankrupting effect when tried at the county level, and not after the remedy is national.

Posted by: Supremacy Claus | Dec 20, 2009 10:56:31 AM

Great comment there SC. Really good, easy to understand content you're sharing here. I'm not a lawyer, so that was really educational and thought-provoking for me. Cheers.

Posted by: chair pads cushions | Dec 21, 2009 3:12:30 PM

Chair: Most people outside the legal profession like my stuff. I try to articulate their ordinary common sense and the obvious logic in more specific legal concepts. Lawyers hate this stuff because it slows down their rent seeking. They want to stay above the law, while using the law to plunder and crush the public. They want nothing applied to them, and exempt themselves from all the accountability they get away with. They are the sole self-regulated profession. Self-regulation is a human impossibility. This self-dealing, this immunity, this usurped, unlawful privileged exemption is actually preventing their progress, prosperity, and improvement.

One exception. The public overwhelmingly wants to preserve the element of intent in crime. Almost everyone strongly disagrees with my suggestion to make all crime strict liability. I want the dangerous sorted from the non-dangerous at sentencing. Professional tort liability would hold the executive branch accountable for its mistakes in sentencing.

Posted by: Supremacy Claus | Dec 22, 2009 9:52:14 AM

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