Ethics VS Morality
A Philosophical Argument Against Prohibition
Humans have been arguing about right and wrong for as long as there have been humans. We argue about how we should be arguing about right and wrong. We argue about the way we argue about them.
I’m not here to rehash any of those arguments.
I’m here to start a new argument instead!
Let’s get started.
The Disaster of Prohibition
A (very) brief history of mandated sobriety
I’d like to begin by talking about one of the greatest legislative disasters in US history - the eighteenth amendment to the constitution, also known as Prohibition:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
In plain language, alcohol was made illegal.
What happened next?
While active, Prohibition created organized crime.
It failed to have a long-term effect on alcohol consumption.
And then it was repealed with the 21st amendment, following which everyone got drunk (at least I assume so).
The (misguided) prohibitionists
I am not a prohibitionist, nor was I alive anywhere near the time when they were powerful enough as a political block to pass a constitutional amendment (which is ridiculously difficult, in the US). Regardless, I can sympathize with their aim to eliminate alcohol consumption, especially in an era in which men possessed much greater power over their wives and families. Alcohol is not known for bringing out the best in people.
That being said, alcohol consumption is something that individuals decide for themselves. While many prohibitionists’ lives may have been improved if those around them were unable to drink, outlawing alcohol turned a personal decision into a matter of state.
This is indicative, to me, of a much broader class of mistake that people make when they talk about right and wrong.
So what is this mistake?
The Mistake
Confusing ethics with morality
We often use the words “ethical” and “moral” interchangeably, but they don’t mean quite the same thing. This is understandable, since what is unethical is often also immoral: murder, rape, bearing false witness, etc. But the distinction is important, because it underlies a great deal of disagreement in our past and current political climate.
Both ethics and morals concern what is right and what is wrong. The difference between them lies in the question right and wrong for whom?
Ethics refers to right and wrong in the context of society, whoever might make up that society.
Morality refers to right and wrong in the context of an individual, i.e. oneself.
I like to think of the dichotomy this way: ethics are the rules a society needs in order to survive, whereas morality governs what a person needs to do in order to live with themselves.
Take traffic laws, for instance. Is running a red light wrong? Ethically speaking, yes. It is wrong. It is against the law. If everyone ran red lights, no one would be able to drive safely.
Is running a red light morally wrong? Well, that depends on the individual, but generally speaking I think most people would agree that running a red light is not some great personal sin.
The Needs of the Society vs. The Needs of the Individual
Sensibilities as Victims
An individual’s choice to drink alcohol is a personal choice to imbibe a substance that alters one’s cognition. This choice is voluntary, age-restricted, and informed (I doubt anyone drinks without knowing that they’re going to be intoxicated, and even if they don’t understand that the first time they will the next). To me, this puts alcohol consumption firmly in the domain of morality.
An individual’s behavior towards other individuals, on the other hand, impacts the society of which they are a part, and so that behavior enters the domain of ethics. Beating one’s wife is a crime whether or not the abuser is drunk.
So why was prohibition such a mistake?
Because Prohibition turned a moral issue into an ethical one. It made one’s personal business the business of the state.
This is the case for almost all vice crimes - drugs, gambling, prostitution, and so on. These crimes are against the law, yes, but they are also almost universally acknowledged as “victimless” crimes, because they’re something a person does to themselves, not others.
Arguments can be made about negative externalities (the negative effect these victimless crimes have on people other than those that commit them) - prostitution is often accompanied by violence (prostitutes being the primary victims), drugs with stealing, etc. - but ultimately criminal law has to rest upon a foundation of people being accountable for their own actions, not those of others, or it unravels into nonsense.
So why, historically, have vices been made illegal?
Well, people have moral opinions, and said opinions rarely come packaged with the wisdom to be kept to oneself. Look at any homeowner’s association; people love enforcing their opinions on others, no matter how inane said sensibilities are.
Thus the victims of victimless crimes aren’t people: they’re the sensibilities of the lawmakers. It’s those sensibilities that get hurt whenever others engage in behaviors disapproved of by the morality of the sensibility-holders.
Freedom vs. Order
There is a vast gulf between the rules that must govern the interactions between people to have a functional society, and the rules that govern a person’s own behavior.
Unfortunately, many people don’t seem to think this gulf exists.
Whenever a person believes that the rules they voluntarily choose to govern their own lives must apply to others, through force if necessary (we don’t call it law enforcement for nothing), they are applying moral rules to an ethical concern.
We’ve seen this pattern throughout history: in every religion that coerces conversion and conformity, in every college campus that cancels those who disagree with the current shibboleth, in every adult telling their child not to use curse words. And in each case, a person’s individual freedom is restricted for the sake of the order others desire for their society.
This isn’t always an evil tradeoff; ethics concerns itself with the freedoms we must trade away for a society to exist at all. I relinquish my freedom to murder you; you relinquish your freedom to murder me, and we can be neighbors. I relinquish my freedom to cheat you; you relinquish your freedom to steal from me, and we can trade.
But society does not require that we relinquish all that much. It is people that require that we relinquish more, not for the sake of society in general but for the sake of their specific vision of what a society should be.
A Fully General Argument Against Prohibition
“Prohibition” as a constitutional amendment refers to a ban on alcohol, but I think of the word itself as referring to a general ban on vices. Drugs, gambling, prostitution - making them illegal, I say, is an act of prohibition. Some behavior is being prohibited, not in the sense that murder is made illegal, but in the sense that it has been judged sinful and thus banned.
We can thus, in the context of the distinction between ethics and morality, alternatively define prohibition as the application of moral preferences to ethical concerns.
This forms a fully general argument against all forms of prohibition - no encroachment of moral preference upon ethical domains can be philosophically justified.
Another way to put this is that morality should not be legislated. While a legislature creates the law, the judgement of individuals is left to the courts, and these concerns are separated for good reason.
Ethics are impersonal; it isn’t controversial to ban murder, and driving only makes sense when there are rules that everyone follows. Morality, in contrast, is very personal, which means that one-size-fits-all solutions will never work for it - and all legislation is a kind of one-size-fits-all solution.
So You’re an Anarchist?
No.
The argument against prohibition is not an argument against regulation - that is, there is a world of difference between making something illegal and having it be legal but with rules.
I am in favor of quite a bit of regulation on all aforementioned vices, and in fact think that one of the main benefits from legalizing them (or not prohibiting them) is that they can then be regulated (and taxed). A full examination of how that could or should work is beyond the scope of this post.
Additionally, while I believe that a person’s vices are their own business, if they endanger others then they become the business of others, and thus a matter of ethics. Drinking should be legal, but driving while drunk shouldn’t be, because driving as an institution relies on people paying attention and reacting to their environment in a timely manner.
Conclusion
When vices are prohibited by the law, an error is being made. Legislatures are conflating ethics, the domain of the law, with morality, the domain of the individual.
Past experiences with Prohibition suggest that such errors lead to negative outcomes for society and fail to stamp out the prohibited behavior. What is illegal cannot be regulated.
We should stop trying to legislate morality. It doesn’t work.